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Exhibit
10.14
INDUSTRIAL BUILDING
LEASE
Between:
PHILLIP J. LATORIA,
JR., Lessor
and
RUBICON TECHNOLOGY,
INC., Lessee
TABLE OF
CONTENTS
| 5 |
Lessee: Repairs and Other Covenants Regarding Care of
Premises |
| 8. |
Lessee Not to Misuse; Sublet; Assignment |
| 10. |
Indemnity for Accidents |
| 11. |
Non-Liability of Lessor |
| 16. |
Failure to Yield Immediate Possession |
| 19. |
Abandonment of Premises |
| 20. |
Subordination; Estoppel Certificate |
| 28. |
Environmental Compliance and Indemnification
Agreement |
| 30. |
Safety and Health Compliance |
| 36. |
Building Rules and Regulations |
| 37. |
Rite of First Refusal |
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| DATE OF
LEASE |
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TERM
OF LEASE (“Term”) |
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July 18, 2007
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BEGINNING: July 12, 2007 (“Commencement
Date”) |
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ENDING:
June 30, 2014 (“Expiration Date”) |
LOCATION OF PREMISES: 900 Green Street,
Bensenville, Illinois 60106, consisting of approximately _30,500_
square feet, the legal description of which is attached hereto as
Exhibit A.
USE: The premises shall be used for
Manufacturing and Office.
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| LESSEE |
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LESSOR |
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| NAME: |
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Rubicon
Technology, Inc. |
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NAME: |
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Philip J.
Latoria, Jr. |
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| ADDRESS: |
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9931 Franklin Ave.
Franklin Park, Illinois 60131
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ADDRESS: |
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3707 King George Lane
St. Charles, Illinois 60174
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| PHONE: |
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847 295
7000 |
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PHONE: |
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630 587
4267 |
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| FAX: |
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847 295
0932 |
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FAX: |
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630 587
4268 |
In consideration of the
mutual covenants and agreements herein stated, Lessor hereby leases
to Lessee and Lessee hereby leases from Lessor solely for the above
purpose the premises designated above (the “Premises”),
together with the appurtenances thereto and the improvement made or
to be made by Lessor pursuant to Exhibit A attached hereto, for the
above Term; provided, however, that, Lessee shall have access to
the Premises upon execution of this lease by Lessor and may begin
construction of the improvements to be made by it and the placement
of its equipment and furnishings in the Premises.
BASE RENT
1. Lessee shall pay Lessor or
Lessor’s agent as rent for the Premises the following
amount:
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Year
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Monthly
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Total
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July 17, 2007 to July 31,
2007
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$10,215.80 |
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$10,215.80 |
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August 1, 2007 to June 30,
2008
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$22,620.84 |
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$248,829.24 |
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July 1, 2008 to June 30,
2009
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$23,994.42 |
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$279,593.00 |
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July 1, 2009 to June 30,
2010
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$23,998.33 |
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$287,280.00 |
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July 1, 2010 to June 30,
2011
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$24,718.25 |
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$296,619.00 |
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July 1, 2011 to June 30,
2012
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$25,462.42 |
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$305,517.00 |
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July 1, 2012 to June 30,
2013
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$26,223.50 |
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$314,682.00 |
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July 1, 2013 to June 30,
2014
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$27,010.17 |
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$324,122.00 |
The Lessee shall pay
additional Rent in the amount of all real estate taxes assessed
against the subject property in excess of the greater of
(i) $1.10 per foot on an annual basis and (ii) the real
estate
taxes levied on the subject property for
the first year in which the improvements on the property are full
assessed by the DuPage County Assessor (the “Tax
Stop”). Any additional rent for tax payments shall be due in
full 15 days after the Lessee is in receipt of the Lessor’s
request for payment, which request for payment shall also include a
copy of the bill for which the additional rent is being charged.
This additional rent shall be billed in May and August unless the
real estate tax bills are delayed. Lessor shall promptly deliver to
Lessee copies of all notices received by Lessor relating to the
real estate taxes on the Premises. Lessee shall have the right to
contest any assessment at its own expense but, if the taxes are
reduced below the Tax Stop, the cost shall be equitably shared by
Lessor.
All rent shall be paid by
Lessee to Lessor monthly in advance on the first day of every
calendar month, at the address shown in paragraph 4, or such other
place as Lessor may designate in writing from time to time. All
rent shall be paid without prior demand or notice and without any
deduction or offset whatsoever. All rent shall be paid in lawful
currency of the United States of America.
All rent due for any partial
month shall be prorated at the rate of 1/30th of the total monthly
rent per day. Lessee acknowledges that late payment by Lessee to
Lessor of any rent or other sums due under the lease will cause
Lessor to incur costs not contemplated by this Lease, the exact
amount of such cost being extremely difficult and practical to
ascertain. Such costs include, without limitation, processing and
accounting charges, and late charges that may be imposed on Lessor
by the terms of any encumbrance or note secured by the Premises.
Therefore, if any rent or other sum due from Lessee is not received
by the tenth day of the month, Lessor may charge Lessee, and Lessee
shall pay, an additional sum of five hundred ($500.00) dollars.
Lessor and Lessee hereby agree that such late charge represents a
fair and reasonable estimate of the costs that Lessor will incur by
reason of any such late payment and that the late charge is in
addition to any and all remedies available to the Lessor and that
the assessment and/or collection of the late charge shall not be
deemed a waiver of any other default. Additionally, all such
delinquent rent or other sums, plus this late charge, shall bear
interest at the lesser of 12% per annum or the then maximum
lawful rate permitted to be charged by Lessor, whichever is
greater. Any payments of any kind returned for insufficient funds
will be subject to an additional handling charge of $50.00, and
thereafter, Lessor may require Lessee to pay all future payments of
rent or other sums due by money order or cashier’s
check.
OPTIONAL LEASE PERIOD
2. There shall be 3 one year
options to extend this lease at the following rates:
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July 1, 2014 to June 30,
2015
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$ |
27,820.42 |
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$ |
333,845.00 |
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July 1, 2015 to June 30,
2016
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$ |
28,655.00 |
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$ |
343,860.00 |
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July 1, 2016 to June 30,
2017
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$ |
29,514.59 |
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$ |
354,175.00 |
To exercise the option to
extend this lease for an additional year, the Lessee shall give
written notice at least nine (9) full months before the
expiration of the current lease term. All other terms of this lease
shall be in full force and effect during any option
period.
SECURITY DEPOSIT
3. Lessee shall deposit with
Lessor the sum of $25,000, as security for the full and faithful
performance of the terms of this Lease. Such amount shall be
deposited in a savings or money market account at a federally
insured bank in the Chicagoland area for the mutual benefit of
Lessor and Lessee and, at least annually, Lessor shall pay to
Lessee the amount of interest earned on the amount on deposit. In
the event default shall be made in payment of rent or other sums
required to be made by Lessee or default shall be made by Lessee in
the performance of any of the other covenants, agreements or
conditions by it to be
kept and performed hereunder, Lessor
may, at its election, after notice and the expiration of any
applicable cure period with such default being uncured, apply the
funds so deposited in payment of Rent or other sums due hereunder
or in remedying any other default hereunder. Within sixty
(60) days after the expiration of the tenancy, provided Lessee
shall not be in default, Lessor shall return to Lessee such portion
of said deposit then remaining, with any earned but unpaid
interest.
The security deposit shall
not be utilized as the last month’s rental.
The Lessee shall be granted
full access to the building upon the execution of this Lease and
upon depositing the security deposit provided for above with the
Lessor.
LESSOR’S AGENT
4. Phillip J. Latoria, Jr. is
hereby designated as Lessor’s Agent for all purposes under
this lease and the rent specified hereunder shall be payable to
Phillip J. Latoria and shall be mailed to:
Phillip J. Latoria,
Jr.
3707 King George
Lane
St. Charles, Illinois
60174
LESSEE REPAIRS AND OTHER COVENANTS
REGARDING CARE OF PREMISES
5. Lessor warrants and
represents to Lessee that Lessor has no knowledge of any defects in
construction, materials or operation of the premises, including the
structure, the HVAC systems and the utilities serving the premises
and that, as of the date hereof, the premises are in compliance
with all applicable laws and ordinances. Lessee has examined and
knows the condition of the Premises and has received the same in
good order and repair, and acknowledges that no representations as
to the condition and repair thereof have been made by Lessor, or
his agent, prior to or at the execution of this lease that are not
herein expressed; Lessee shall in addition to all other covenants
and obligations specified herein keep the Premises in a clean and
healthful condition according to the applicable municipal
ordinances and the direction of the proper public officers during
the term of this lease at Lessee’s expense, and upon the
termination of this lease, in any way, will yield up the Premises
to Lessor, in good condition and repair, loss by fire and ordinary
wear and tear excepted, and will deliver the keys therefor at the
place of payment of said rent.
Lessee shall, at its own
expense and cost, keep and maintain all parts of the Premises in
good condition, promptly making all necessary repairs and
replacements, including but not limited to Exterior of the
building, all landscaping, the parking lot, windows, window
cleaning inside and outside, glass and plate glass, doors, any
special office entry, interior walls and finish work, light bulbs,
fluorescent lighting bulbs and ballasts, floor covering, HVAC
system, hot water heater and, electrical distribution within the
Premises, plumbing work and fixtures, blockages of sewer lines
within the Premises, all fixtures, appurtenances, equipment and
mechanical apparatus within the demised premises, daily removal of
spoilable interior trash and at least one weekly exterior trash
removal keeping the whole of the Premises in a clean and sanitary
condition.
Lessee shall promptly comply
with all laws and ordinances and lawful orders and regulations
affecting the Premises and the cleanliness, safety, occupancy and
use of same, including, without limitation, compliance with the
Americans With Disabilities Act (“AD Act”) to the
extent that the AD Act applies to Lessee’s operations within
the Premises. Lessee hereby covenants and agrees not to permit,
commit or suffer to exist any condition which might result in a
violation of the AD Act, and if any such condition should occur, to
immediately remedy any such condition.
Lessee shall not damage any
demising wall or disturb the integrity and support provided by any
demising wall and shall, at its sole cost and expense, promptly
repair any damage or injury to any demising wall caused by Lessee
or its employees, agents, customers, invites, and/or
licensees.
All of this Section 5 is
subject to Lessor’s obligations under Section 6
below.
LESSOR’S REPAIRS
6. Lessor is providing a
newly constructed building and Lessee is responsible for all
maintenance and repairs of any type, except for any defect in
construction or equipment provided by Lessor for a period of three
(3) years after the Commencement Date. After such 3 years
Lessor will assign to Lessee any manufacturer or other third party
warranties.
Lessor agrees to give Lessee
reasonable advance notice for entry into and repairs to the demised
premises and to perform such repairs with minimal disruption to
Lessee’s operations.
ALTERATIONS
7. Except for (i) the
improvements, alterations and additions described in Exhibit B
attached hereto, which may be made by Lessee at its expense and
which Lessor hereby approves and authorizes Lessee to make at its
convenience without the need for any further approvals by Lessor
and (ii) alterations, improvements or additions Lessee may
desire to make from time to time during the Term, which are of a
decorative or cosmetic nature or which do not materially affect the
structure or the systems of the building. Lessee shall not make any
alterations, additions or improvements to the Premises (including
but not limited to roof and wall penetrations) without the prior
written consent of Lessor, such consent will not be unreasonably
withheld. All alterations, additions, improvements, and partitions
erected by Lessee, except those permitted under (i) or
(ii) above, shall be and remain the property of Lessee during
the term of this lease, and Lessee shall, unless Lessor otherwise
elects by written notice to Lessee to have Lessee leave any or all
of such alterations, additions or improvement as hereinafter
provided, remove all alterations, additions, improvements, and
partitions erected by Lessee and restore the Premises to their
original condition by the date of termination of this lease or upon
earlier vacating of the Premises.
Lessor may impose such
conditions with respect thereto as Lessor deems reasonably
appropriate, including, without limitation, requiring Lessee to
furnish Lessor with security for the payment of all costs to be
incurred in connection with such work and insurance against
liabilities which may arise out of such work. The work necessary to
make any alterations, improvements or additions to the premises
shall be done at Lessee’s expense by employees of or
reputable contractors hired by Lessee and approved by Lessor which
approval will not be unreasonably withheld or delayed. Lessor
agrees that it will not unreasonably withhold consent to permit
Lessee to make said alterations, improvements or additions. Lessee
shall promptly pay to Lessor or to Lessee’s contractors, as
the case may be, when due, the cost of all such work and of all
decorating required by reason thereof, and upon completion deliver
to Lessor, if payment is made directly to contractors, evidence of
payment, contractors’ statements and affidavits and full and
final waivers of all liens for labor, services or materials, and
Lessee shall protect, defend, indemnify and hold Lessor harmless
from all costs, damages, liens and expenses related thereto. All
work done by Lessee or its contractors pursuant to this paragraph 7
or pursuant to paragraph 5 hereof shall be done in a first-class
workmanlike manner using only good grades of materials and shall
comply with all insurance requirements and all applicable laws and
ordinances and rules and regulations of governmental departments or
agencies.
LESSEE NOT TO MISUSE: SUBLET:
ASSIGNMENT
8. Lessee will not allow the
Premises to be used for any purpose that will increase the rate of
insurance thereon, nor for any purpose other than that herein
before specified, and will not load floors with machinery or goods
beyond 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, except as permitted
hereafter, 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 shall not be unreasonably withheld and Lessee
will not permit any transfer by operation of law of the interest in
the Premises acquired through this lease, and will not permit the
Premises to be used for any unlawful purpose, or for any purpose
that will injure the reputation of the building of which they are a
part, or increase the fire hazard of said building or disturb the
Lessees of such building or the neighborhood, and will not permit
the same to remain vacant or unoccupied with the rent being unpaid
for more than ten consecutive days; and will not allow any signs,
cards or placards to be posted, or placed thereon, except for signs
identifying Lessee’s business or identifying or restricting
the means of access to or exit from the Premises. All equipment in
or about the Premises shall be operated solely at Lessee’s
risk, except such as may be operated exclusively by Lessor. Lessor
shall not unreasonably withhold its consent to sublet or assignment
of Lessee’s interest under said lease. Nothing herein
contained shall limit or waive Lessor’s obligation to
mitigate its damages in the event of Lessee’s
default.
For purposes of this
Section 8, a transfer of the ownership interests controlling
Lessee will be deemed an assignment of this Lease unless such
ownership interests are publicly traded. Further, on the condition
that Lessee is not in default of any term, covenant or condition of
this Lease, Lessee will have the right, with advance written notice
to but without the consent of Lessor, to sublease the Premises, or
a portion thereof, or assign this Lease to:
a) any corporation or entity
which controls, is controlled by or is under common control with
Lessee, on the condition that (x) such sublease or assignment
is for a good business purpose and not principally for the purpose
of avoiding Lessor’s consent rights, (y) the proposed
use of the Premises and the reputation, business, and financial
responsibility of the proposed sublessee or assignee are consistent
with the first-class nature of the Building, and (z) in the
case of an assignment, the assignee has a net worth sufficient to
perform the obligations of the Lessee under this Lease;
or
b) an entity into which
Lessee is merged or consolidated or to an entity to which
substantially all of Lessee’s assets are transferred, on the
condition that (x) such merger, consolidation or transfer of
assets is for a good business purpose and not principally for the
purpose of transferring Lessee’s leasehold estate,
(y) the proposed use of the Premises and the reputation and
business of the proposed assignee or transferee are consistent with
the nature of the Building, and (z) the assignee or successor
entity has a net worth at least equal to the net worth of Lessee
immediately before such merger, consolidation or
transfer.
Lessor will execute and
deliver to Lessee, or at Lessee’s direction, a letter to
Hercules Technology Growth Capital, Inc. or any other secured
lender of Lessee substantially as set forth in Exhibit C attached
hereto.
MECHANIC’S LIEN
9. Lessee has no authority to
subject the interest of Lessor in the Premises to any
mechanics’ or materialmen’s liens of any kind, nor
shall any provision contained in this lease ever be construed as
empowering the Lessee to encumber or cause the Lessor to encumber
the title or interest of Lessor in the
Premises. However, if by reason of any
alteration, repair, labor performed or materials furnished to the
Premises for or on behalf of Lessee any mechanic’s or other
lien shall be filed, claimed, perfected or otherwise established as
provided by law against the Premises, Lessee shall discharge or
remove the lien or post security therefor with Lessor in a manner
satisfactory to Lessor in Lessor’s reasonable discretion
within Fifteen (15) days after notice from Lessor to Lessee of
the filing of same.
INDEMNITY FOR
ACCIDENTS
10. Lessee shall indemnify,
defend and hold Lessor harmless from and against any and all claims
or liabilities, including reasonable attorney’s fees, for
injuries to all persons and damage to or theft or misappropriation
or loss of property occurring in or about the Premises arising from
Lessee’s use of the Premises or any facilities thereto, or
from the conduct of Lessee’s business or from any activity,
work or things done, permitted or suffered by Lessee in or about
the Premises or elsewhere and shall further indemnify and hold
Lessor harmless from and against any and all claims and liabilities
arising from any breach or default in the performance of any
obligation on Lessee’s part to be performed under the terms
of this lease, or arising from any act or omissions of Lessee, or
any of Lessee’s agents, contractors, or employees, and from
and against all costs, attorney’s fees, expenses and
liabilities incurred in the defense of any such claim or any action
or proceeding brought thereon, and in case any action or proceeding
be brought against Lessor by reason of any such claim, Lessee upon
notice from Lessor shall defend the same at Lessee’s expense
by counsel reasonably satisfactory to Lessor, and Lessor shall
cooperate with Lessee in such defense. Lessee, as a material part
of the consideration to Lessor, hereby assumes all risk of damage
to property of Lessee or injury to persons, in, upon or about the
Premises or any facilities thereto arising from any cause, except
the act or neglect of Lessor or its agents, contractors and
employees, and Lessee hereby waives, to the extent not prohibited
by law, all claims in respect thereof against Lessor.
NON-LIABILITY OF
LESSOR
11. Except as otherwise
provided in this lease or by law, Lessor shall not be liable for
any damage occasioned by failure to keep the Premises in repair,
nor for any damage done or occasioned by or from plumbing, gas,
water, telephone lines, sprinkler, steam, or other pipes or
sewerage, or the bursting, leaking or running of any pipes, tank or
plumbing fixtures, in, above, upon or about Premises or any
building of which Premises are a part or related improvement, nor
for any damage occasioned by water, snow or ice being upon or
coming through roof, skylights, trap door or otherwise, nor for any
damages arising from acts, or neglect of co-Lessee, or other
occupants of such building or improvement, or of any owners, or
occupants, of adjacent or contiguous property.
UTILITIES
12. Lessee shall pay for all
gas, heat, light, power, electricity, telephone or other services
provided to the Premises after the date upon which Lessee takes
possession of the Premises, including without limitation, any and
all additional meter fees, installation, hook-up fees or connection
fees incurred on account of Lessor’s or Lessee’s
improvements after the date of this lease.
WATER
13. Lessee will furnish
during the term of this lease all necessary water for sanitary
purposes, used in connection with the toilets and wash basins and
for any other purposes located in the Premises.
HVAC EQUIPMENT
14. Lessee shall have all
heating equipment installed by Lessor cleaned and serviced at
Lessee’s expense, by a service company approved by Lessor at
least once per year on or before November1st of each year and all
air conditioning equipment installed by Lessor cleaned and serviced
at least once per year on or before July 1st. Lessee must
provide written verification of servicing to Lessor within Thirty
days after such service. If the servicing is not done by the above
dates each year, Lessor shall have the equipment serviced and
Lessee shall remit payment to Lessor upon receipt. Subject to
Lessor’s obligations under Section 6 of this lease,
Lessee, at its sole expense, shall repair and replace all HVAC
equipment installed by Lessor and change its furnace filters on a
regular basis. Nothing in this Section 14 shall limit
Lessor’s obligations under Section 6 of this
lease.
ACCESS TO PREMISES
15. Lessee will allow Lessor
and its agents, during the last nine (9) months of the term of
this lease, reasonable access to the Premises for the purpose of
examining or exhibiting the same, or to make any repairs or
alterations thereof which Lessor may see fit to make, if Lessee has
vacated or abandoned the Premises, and will allow to have placed
upon the Premises at all times notice of “For Sale” and
“To Rent,” and will not interfere with the same.
“For Sale” and “To Rent” signs shall not
interfere with Lessee’s business use and enjoyment of the
premises.
FAILURE TO YIELD IMMEDIATE
POSSESSION
16. Lessee will, at the
termination of this lease by lapse of time or otherwise, yield up
immediate possession to Lessor, and failing so to do, will pay as
liquidated damages for the whole time such possession is withheld,
150% of the base rental payable hereunder per day, but the
provisions of this clause shall not be held as a waiver by Lessor
of any right of re-entry, as hereinafter set forth, nor shall the
receipt of said rent, or any part thereof, or any other act in
apparent affirmance of tenancy, operate as a waiver of the right to
forfeit this lease and the term hereby granted for the period still
unexpired, for a breach of any of the covenants herein.
EXTRA FIRE HAZARD
17. There shall not be
allowed, kept, or used on the Premises any flammable or explosive
liquids or materials except such as may be necessary for use in the
business of the Lessee, and in such case, any such substances shall
be delivered in amount, and stored, and used, in accordance with
the rules of the applicable Board of Underwriters and statutes and
ordinances, now or hereafter in force. If by reason of the failure
of Lessee to comply with the provision of this paragraph, any
insurance coverage is jeopardized or insurance premiums are
increased, Lessor shall have the right to require the Lessee to
make immediate payment of the increased insurance
premiums.
DEFAULT
18. Each of the following
events shall constitute default or breach of this lease by
Lessee:
(a) If Lessee, or any
successor or assignee of Lessee, while in possession, shall file a
petition in bankruptcy or insolvency or for reorganization under
any Bankruptcy Act, or shall voluntarily
take advantage of any such
act by answer or otherwise, or shall make an assignment for the
benefit of creditors.
(b) If involuntary
proceedings under any Bankruptcy Law or Insolvency Act shall be
instituted against Lessee, or if a receiver or trustee shall be
appointed of all or substantially all of the property of Lessee,
and such proceeding shall not be dismissed with the receivership or
trustee vacated within sixty (60) days after the institution
or appointment.
(c) If Lessee shall fail to
pay Lessor any rent or additional rent when the rent shall become
due and shall not make the payment within 5 days after notice
thereof by Lessor to Lessee.
(d) If Lessee shall
fa
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