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INDUSTRIAL BUILDING LEASE

Lease Agreement

INDUSTRIAL BUILDING LEASE | Document Parties: RUBICON TECHNOLOGY, INC. | Rubicon Technology, Inc You are currently viewing:
This Lease Agreement involves

RUBICON TECHNOLOGY, INC. | Rubicon Technology, Inc

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Title: INDUSTRIAL BUILDING LEASE
Date: 9/5/2007
Law Firm: McGuireWoods    

INDUSTRIAL BUILDING LEASE, Parties: rubicon technology  inc. , rubicon technology  inc
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Exhibit 10.14

 

INDUSTRIAL BUILDING LEASE

Between:

PHILLIP J. LATORIA, JR., Lessor

and

RUBICON TECHNOLOGY, INC., Lessee

 

 


TABLE OF CONTENTS

 

1. Base Rent
2. Optional Lease Period
3. Security Deposit
4. Lessor’s Agent
5 Lessee: Repairs and Other Covenants Regarding Care of Premises
6. Lessor’s Repairs
7. Alterations
8. Lessee Not to Misuse; Sublet; Assignment
9. Mechanic’s Lien
10. Indemnity for Accidents
11. Non-Liability of Lessor
12. Utilities
13. Water
14. HVAC Equipment
15. Access to Premises
16. Failure to Yield Immediate Possession
17. Extra Fire Hazard
18. Default
19. Abandonment of Premises
20. Subordination; Estoppel Certificate
21. Fire and Casualty
22. Payment of Fees
23. Notice
24. Insurance
25. Parking
26. Waiver
27. Inspection
28. Environmental Compliance and Indemnification Agreement
29. Snow Removal
30. Safety and Health Compliance
31. Quiet Possession
32. Trade Fixtures
33. Signage
34. Additional Space
35. Condemnation
36. Building Rules and Regulations
37. Rite of First Refusal
38. Miscellaneous

 

 


DATE OF LEASE    TERM OF LEASE (“Term”)

July 18, 2007

   BEGINNING: July 12, 2007 (“Commencement Date”)
   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.

 


 

                LESSEE                    LESSOR
NAME:   Rubicon Technology, Inc.    NAME:   Philip J. Latoria, Jr.
ADDRESS:  

9931 Franklin Ave.

Franklin Park, Illinois 60131

   ADDRESS:  

3707 King George Lane

St. Charles, Illinois 60174

PHONE:   847 295 7000    PHONE:   630 587 4267
FAX:   847 295 0932    FAX:   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:

 

Year

  

Monthly

  

Total

July 17, 2007 to July 31, 2007

   $10,215.80    $10,215.80

August 1, 2007 to June 30, 2008

   $22,620.84    $248,829.24

July 1, 2008 to June 30, 2009

   $23,994.42    $279,593.00

July 1, 2009 to June 30, 2010

   $23,998.33    $287,280.00

July 1, 2010 to June 30, 2011

   $24,718.25    $296,619.00

July 1, 2011 to June 30, 2012

   $25,462.42    $305,517.00

July 1, 2012 to June 30, 2013

   $26,223.50    $314,682.00

July 1, 2013 to June 30, 2014

   $27,010.17    $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:

 

July 1, 2014 to June 30, 2015

   $ 27,820.42    $ 333,845.00

July 1, 2015 to June 30, 2016

   $ 28,655.00    $ 343,860.00

July 1, 2016 to June 30, 2017

   $ 29,514.59    $ 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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