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Exhibit
10.12
COMMERCIAL
LEASE
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| Date of Lease |
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Term of Lease |
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Base Rent: |
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| December 23rd, 2004 |
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See Paragraph 1 below |
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$282,000 per lease year, payable in equal monthly
installments of $23,500 |
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| Purpose |
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Building |
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Premises: |
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Security Deposit: |
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| See Paragraph 4 |
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Approximately
28,800 square feet
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9901-9923 Franklin
Avenue
Franklin Park, Illinois
60131
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$23,500 |
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| Lessee |
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Lessor |
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| Name: |
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RUBICON
TECHOLOGY, INC. |
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Name: |
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BARTMANNS, PERALES & DOLTER, LLC |
| Address: |
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9931
Franklin Avenue |
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Address: |
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1502 W.
Fir |
| City, State, Zip: |
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Franklin
Park, Illinois 60131 |
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City, State, Zip |
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Perry,
Oklahoma 73077 |
| Telephone: |
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(847)
457-3610 |
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Telephone: |
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(580)
336-0035 |
In consideration of the mutual covenants
and agreements herein stated, Lessee hereby leases to Lessee and
Lessee hereby leases from Lessor solely for the above
purpose.
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| TERM |
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1. The
Term of this Lease shall commence on the Commencement Date (as
defined below) and end on the date immediately preceding the tenth
(10 th
) anniversary date of the
Commencement Date. As used in this Lease, “Commencement
Date” shall mean the date which is thirty (30) days after the
last to occur of (i) Lessor obtaining record title to the Premises,
(ii) Lessee receiving a copy of the existing Phase I Environmental
Report on the Property prepared by Noble & Associates, Inc.,
dated January 22, 2002, and the No Further Remediation Letter
issued by the Illinois Environmental Protection Agency dated
March 28, 2003, (iii) Lessee obtaining a certificate of
occupancy for that portion of the Premises known as 9901 Franklin
Avenue from appropriate governmental authorities, and (iv)
Masterform Tools, Inc. vacates that portion of the Premises known
as 9901 Franklin Avenue and the same are put in a “broom
clean” condition ready for occupancy; provided, however, that
notwithstanding the foregoing, so long as conditions (i) and (iv)
have occurred, the Commencement Date shall be no later than
June 1, 2005. Lessor shall use its best efforts to cause the
occurrence of (i) above not later than April 30,
2005. |
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| RENT |
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2. Lessee
shall pay Lessor or Lessor’s agent as base rent for the
Premises for each year of the term of this Lease the sum stated
above, monthly on the first day of each month at Lessor’s
address stated above or such other address as Lessor may designate
in writing. |
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ADDITIONAL
RENT
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3. In
addition to the base rent set forth in this Lease, Lessee shall
also pay to Lessor as additional rent the sum of $250,000.00,
payable in equal monthly installments of $2,083.33 throughout the
term of this Lease on the first day of each month along with the
base rent due hereunder; subject, however, to the provisions of
Paragraph 10 of this Lease. |
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LEASED
PREMISES;
USE
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4. The
Premises shall include the rentable area of each of the buildings
located 9901-9923 Franklin Avenue, Franklin Park, Illinois, 60131.
The Premises shall be used only for manufacturing and general
support office purposes, in compliance with all federal, state, and
local laws, and for no other purpose. |
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| SECURITY DEPOSIT |
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5. Lessee
shall maintain a Security Deposit at all times during the term
hereof with Lessor equal to one (1) month base rent (the
“Security Deposit”). Lessee shall deposit the Security
Deposit with Lessor within three (3) business days after the
Commencement Date. The Security Deposit shall be held by Lessor as
security for the faithful performance by Lessee of all the terms,
covenants, and conditions of this Lease to be kept and performed by
Lessee during the term hereof. If Lessee defaults with respect to
any provisions of this Lease, including the provisions relating to
the payment of rent, after the serving of any required notice and
expiration of any applicable cure period, Lessor may, but shall not
be required to use, apply or retain all or any part of this
Security Deposit for the payment of any rent or any other sum in
default, or to compensate Lessor for any other loss or damage which
Lessor may suffer by reason of Lessee’s default. If any
portion of such deposit is so used or applied, Lessee shall, within
five days after written demand therefore, deposit cash with Lessor
in an amount sufficient to restore the Security Deposit to its
proper amount and Lessee’s failure to do so shall be a
default under this Lease. Lessor shall not be required to keep this
Security Deposit separate from its general funds, and Lessee shall
not be entitled to interest on such deposit. If Lessee shall fully
and faithfully perform every provision of this Lease to be
performed by it, the Security Deposit or any balance thereof shall
be returned to Lessee (or, at Lessor’s option, to the last
assignee of Lessee’s interest hereunder) within 30 days
following expiration of the Lease term. In the event of termination
of Lessor’s interest in this Lease, Lessor shall transfer the
deposit to Lessor’s successor in interest. The Security
Deposit shall not be treated as an advance payment of
rent. |
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| ADDITIONAL CHARGES |
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6. In addition to the Rent provided in
this Lease, Lessee shall pay when due to appropriate third parties
100% of the following items (the “Additional Charges”)
and shall produce at Lessor’s request proof of payment of the
Additional Charges:
a. All real estate taxes and assessments
including all water and sewer rents and other governmental
impositions and charges of every kind and nature whatsoever,
extraordinary, ordinary, foreseen and unforeseen, on the Premises,
including land, building and improvements thereon. Notwithstanding
anything to the contrary, at Lessor’s request, Lessee shall
pay to Lessor each month a prorated amount of Real Estate Taxes,
based upon the reasonable estimate of Lessor or its lender, which
amount shall be applied toward the payment of Real Estate Taxes
when due. Lessee may contest the amount of the Real Estate Taxes
and/or the assessed value of the Premises in compliance with
applicable laws so long as Lessee pays the Real Estate Taxes when
due or posts adequate security for their payment so as to avoid any
tax sale of the Premises.
b. All insurance premiums on the
Premises, including all insurance premiums for fire, extended
coverage, liability, and vandalism and malicious mischief
endorsements and any other insurance and endorsements that Lessor
reasonably deems necessary on the Premises and that is available to
Lessee on a commercially reasonable basis. Notwithstanding anything
to the contrary, at Lessor’s request, Lessee shall pay to
Lessor each month a prorated amount of insurance premiums, based
upon the reasonable estimate of Lessor or its lender, which amount
shall be applied toward the payment of insurance premiums when
due.
c. All costs to maintain, repair,
supervise and administer common areas, parking lots, sidewalks,
driveways, and other areas of the Premises including police and
fire protection, all utility costs, landscaping, gardening, sound
and music systems, if any, and personnel used in such operation as
necessary to maintain the Premises in the same condition as when
the Lease commenced, ordinary wear and tear excepted. The foregoing
shall not require Lessee to pay any management, administrative or
other charges to Lessor or any agent of Lessor.
d. Any parking charges, utilities,
surcharges, or any other costs levied, assessed or imposed by, or
at the direction of, or resulting from statutes or regulations, or
interpretations thereof promulgated by any governmental authority
in connection with the use or occupancy of the Building or the
parking facilities servicing the Premises.
If Lessee fails to make any such payment
within 15 days when due, Lessor shall have the right, but not the
obligation to pay same and any such payment shall be included
within Additional Rent hereunder.
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| FINAL CHARGES |
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7. Even
though the term has expired and Lessee has vacated the Premises,
when the final determination is made of Lessee’s share of
said Additional Charges of the year in which the Lease terminates,
Lessee shall immediately pay same. |
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| UTILITIES |
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8. Lessee
shall pay in addition to the rent above specified, all gas, heat,
light, power, sewer charges, telephone service and all other
services and utilities supplied to the Premises, together with any
taxes thereon, and in case such water rents and bills for gas,
electric light and power shall not be paid when due, Lessor shall
have the right to pay the same, which amount so paid, together with
any sums paid by Lessor to keep the Premises in a clean and health
condition, as above specified, are declared to be so much
additional rent and payable with the installment of rent next due
thereunder. If any such services are not separately metered to
Lessee, Lessee shall pay the aforementioned prorated share of all
charges metered with other premises. |
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| LATE CHARGES |
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9. Lessee
hereby acknowledges that the late payment by Lessee to Lessor of
rent or other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease the exact amount of which will be
extremely difficult to ascertain. Such costs include processing and
accounting charges, and late charges which may be imposed upon
Lessor by terms of any mortgage or trust deed covering the
Premises. Accordingly, if any installment of Base Rent, Additional
Rent, Additional Charges or any other sum due from Lessee shall not
be received by Lessor or Lessor’s designee within five days
of its due date or, if no due date is specified in this Lease,
within five (5) days of demand from Lessor, Lessee shall pay to
Lessor a late charge equal to five percent of such overdue amount
plus any attorney’s fees incurred by Lessor by reason of
Lessee’s failure too pay Rent and/or other charges when due
hereunder and, if such payments remain unpaid for a period of
thirty (30) days after written demand from Lessor, interest at the
rate of 10% per annum. The parties hereby agree that such late
charges represent a fair and reasonable amount of the cost that
Lessor will incur by reason of the late payment by Lessee. Lessee
hereby specifically waives all notice, demand and presentment for
monthly Base Rent and Additional Rent (as defined in Section 3
above), except as expressly provided for herein. Acceptance of such
late charges by the Lessor shall in no event constitute a waiver of
Lessee’s default with respect to such overdue amount, not
prevent Lessor from exercising any of the other rights and remedies
granted hereunder. |
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| OPTION TO PURCHASE |
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10. Lessee
shall have the option to purchase all, but not less than all, of
the Premises at any time during the Lease Term after the first day
of the 61 th month of the Lease Term and prior to the end of the Lease Tern,
provided Lessee is not then in default under this Lease, which
option is exercisable by written notice to Lessor not later than
120 days prior to such date. The Purchase Price under this option
shall be the greater of (i) $1,200,000, or (ii) the fair market
value of the Premises (as of the date of Lessee’s exercise of
the option) as determined by an appraiser mutually agreeable to
Lessor and Lessee, plus or minus standard prorations, payable in
cash at closing. The parties agree to execute mutually acceptable
documents, including a separate real estate purchase contract as
may be reasonably necessary to consummate this transaction, which
contract shall include terms and conditions consistent with this
Lease and with customs prevailing in Chicago, Illinois for
transactions of this type. Title shall be conveyed by recordable
warranty deed and shall be free and clear of all liens and
encumbrances except those arising from or imposed by applicable
laws and ordinances, easements of record existing at the date of
this Lease and taxes not yet due and payable. In the event Lessee
exercises its option to purchase, Lessee further agrees to pay to
Lessor in a lump sum, at closing of the purchase under the option,
the total of all remaining monthly installments provided for in
Paragraph 3 above for the unexpired portion of the 10 year Lease
term. |
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| LESSEE NOT TO MISUSE SUBLET;
ASSIGNMENT |
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11. Lessee
shall not keep or store on the Premises any flammable or explosive
liquids or materials save such as may be necessary for use in the
business of the Lessee, and in such case, any such substances shall
be delivered and stored in amount, and used, in accordance with the
rules of the applicable Board of Underwriters and statutes and
ordinances now or hereafter in force. Lessee shall not do or permit
anything to be done in or about the Premises nor bring or keep
anything therein which will in any way increase the existing rate
of & affect any fire or other insurance upon the Building or
any of its contents, or cause a cancellation of any insurance
policy covering the Building or any part thereof or any of its
contents without the consent of Lessor and the amount of such
increase, if any, shall be paid by Lessee to Lessor upon demand.
Lessee will not load floors with machinery or goods beyond the
floor load rating prescribed by applicable municipal ordinances and
will not allow the Premises to be occupied in whole, or in part, by
any other person, and will not sublet the same or any part thereof
nor assign this Lease without in each case the prior written
consent of the Lessor, which consent will not be unreasonably
withheld or delayed by Lessor, and Lessee will not permit any
transfer by operation of law the interest in the Premises acquired
through this Lease. Lessee shall not do or permit anything to be
done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the
Building or inure or annoy them or use or allow the Premises to be
used for any improper, immoral, or unlawful purposes, nor shall
Lessee cause, maintain or permit any nuisance in, on or about the
Premises. Lessee shall comply with all governmental regulations,
laws and ordinances relating to Lessor’s occupancy, use,
repair and maintenance of the Premises and all equipment and
contents contained therein. Lessee shall not commit or allow to be
committed any waste in or upon the Premises. Lessee will not permit
the same to remain vacant or unoccupied for more than ten
consecutive days, and will not allow any sign (except for signage
identifying Lessee’s business), cards or placards to be
posted, or placed thereon. |
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| MECHANIC’S LIEN |
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12. Lessee
will not permit any mechanic’s lien or liens to be placed
upon the Premises or the Building during the term hereof and in
case of the filing of such lien, Lessee will promptly pay same, or,
if Lessee desires to contest such lien, Lessee will deposit
reasonably adequate security with Lessor. If default in payment
thereof shall continue for 30 days after written notice thereof
from Lessor to the Lessee, Lessee shall have the right and
privilege at Lessor’s option of paying the same or any
portion thereof without inquiry as to the validity thereof and any
amounts so paid, including attorney’s fees, expenses and
interest, shall be so much additional rent hereunder due from
Lessee to Lessor and shall be immediately due and payable by Lessee
to Lessor. |
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| ALTERATIONS AND ADDITIONS |
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13. Lessee
shall not paint any brick or concrete walls, columns or ceilings,
and Lessee shall not make or allow to be made any alterations,
additions or improvements to or of the Premises or any part thereof
without the prior written consent of Lessor which shall not be
unreasonably withheld and any alterations, additions or
improvements to or of the Premises shall at once become a part of
the realty and belong to the Lessor and shall be surrendered with
the Premises. If Lessor consents to the making of any alterations,
additions or improvements to the Premises by Lessee, the same shall
be made by Lessee at Lessee’s sole cost and expense. Upon
termination of this Lease, Lessor, at its sole option, and at
Lessee’s sole cost and expense, may remove or require Lessee
to remove certain alterations, additions, or improvements made by
Lessee and repair any damage to the Premises caused by such
removal, whether or not such were made with Lessor’s
approval. Notwithstanding any term or provision in this Lease to
the contrary, any special air-conditioning, water cooling,
electricity-generating or other special equipment installed in or
about the Premises by Lessee, however attached, shall be considered
a trade fixture and the personal property of Lessee and may be
removed by Lessee upon any termination of the Lease; provided that
Lessee shall repair any damage caused by such removal. |
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| REPAIRS |
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14. By entry
hereunder, Lessee shall be deemed to have accepted the Premises as
being in good, sanitary order, condition and repair and
acknowledges that no representations or warranties as to the
conditions and repair thereof have been made by Lessor, or his
agent other than those specifically set forth herein, if any,
Lessee shall, at Lessor’s sole cost and expense, keep the
Premises and every part thereof in good condition and repair, as
well as in a good tenantable and wholesome condition. Lessee will,
as far as commercially reasonably possible, keep said improvements
from deterioration due to ordinary wear and from falling
temporarily out of repair. If Lessee does not make repairs as
required hereunder promptly and adequately, after at least five (5)
days notice form Lessor, Lessor may, but need not make such repairs
and pay the costs therefore and such costs shall be so much
additional rent immediately due from and payable by Lessee to
Lessor. Lessee shall, upon the expiration or sooner termination of
the Lease, deliver the Premises to the Lessor in a broom clean
condition, ordinary wear and tear excepted. Any damage to adjacent
premises caused by Lessee’s use of the Premises shall be
repaired at the sole cost and expense of Lessee. Lessor shall not
be liable for any failure to make any repairs or to perform any
maintenance. Lessee, at its sole option, shall carry such business
interruption insurance as it deems advisable. There shall be no
abatement of rent and no liability of Lessor by reason of any
injury to or interference with Lessee’s business arising from
the making of any repairs, alterations or improvements in or to
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