Exhibit 10.14
AMENDED AND RESTATED LEASE
AGREEMENT
This Amended and Restated Lease
Agreement (this “Lease”), is made this ____ day of
October, 2007, by and between Streitz Properties, LLC, a Minnesota
limited liability company (the “ LESSOR ”) and
Advanced Lighting Systems, LLC, a Delaware limited liability
company (the “ LESSEE ”). The LESSOR and the
LESSEE are party to that certain Lease Agreement dated
September 28, 2007 (the “ Prior Agreement
”). The LESSOR and LESSEE desire to amend and restate the
Prior Agreement in its entirety.
WITNESSETH:
The LESSOR, for and in consideration
of the covenants and agreements hereinafter contained to be kept
and performed by the LESSEE, does hereby demise and lease to the
LESSEE and the LESSEE does hereby hire and take from the LESSOR the
Leased Premises, together with improvements thereon (the “
Leased Premises ”), located at 519 Lincoln Road, in
the City of Sauk Centre, County of Stearns and State of Minnesota,
further described in Exhibit A .
To have and to hold the Leased
Premises hereby demised together with the rights, easements and
appurtenances thereto belonging to the LESSEE, its successors and
assigns, on the following terms and conditions:
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1.
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TERM AND
USE. The term of this
Lease shall commence on the 28th day of September, 2007 (the
“ Effective Date ”), and shall continue and
include the 30th day of September, 2012, unless extended or sooner
terminated as hereinafter provided (the “ Term
”). The LESSEE may not use the Leased Premises for any
unlawful use. The LESSEE further acknowledges that it has inspected
the Leased Premises and accepts the Leased Premises in an “as
is” condition.
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The LESSEE shall pay
to the LESSOR as and for fixed rent (the “ Fixed Rent
”) for the Leased Premises the amount of Eight Thousand Eight
Hundred Fifteen and no/100 Dollars ($8,815.00) per month, which
amount shall be paid on or before the 1 st day of each month during the
Term. The Fixed Rent shall be payable at the office of the LESSOR
at the address on the signature page of this Lease, or such other
place as is designated by the LESSOR.
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(b)
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ADDITIONAL
RENT. In addition to the Fixed Rent, the LESSEE shall pay the
additional rent amounts set forth below (collectively, “
Additional Rent ”) and together with the Fixed Rent
(the “ Rent ”).
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i.
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As Additional
Rent, the LESSEE shall pay, on or before the 1st day of each month
throughout the Term, 1/12th of the real estate taxes due and
payable on the Leased Premises. It shall be the LESSOR’S
responsibility to satisfy the real estate taxes owing on the Leased
Premises in a timely fashion.
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ii.
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The LESSEE
shall pay as Additional Rent all premiums relative to hazard and
public liability insurance coverage for the Leased
Premises.
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iii.
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Except as
otherwise provided in this Lease and as Additional Rent the LESSEE
shall make, at the LESSEE’S expense, all necessary repairs to
the Leased Premises. Repairs shall include such items as routine
maintenance of the Leased Premises, including, but not limited to,
snow removal, sweeping of sidewalks, interior painting, window
cleaning, glass replacement, repair and upkeep of interior plumbing
and electrical systems, repairs of floors, walls, ceilings and
other parts of the Leased Premises damaged or worn through normal
occupancy. Notwithstanding anything in this Lease to the contrary,
the LESSOR shall be responsible for repairs and maintenance of the
exterior of the building, major mechanical or plumbing systems, the
roof, foundation and load bearing walls and the heating, air
conditioning and ventilation systems.
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iv.
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As Additional
Rent the LESSEE shall pay, at the LESSEE’S expense, all
charges for water, sewer, gas, electricity, telephone and other
services and utilities used by the LESSEE on the Leased Premises
during the Term.
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v.
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All taxes,
charges, costs and expenses that the LESSEE assumes or agrees to
pay hereunder, together with all interest and penalties that may
accrue thereon in the event of the failure of the LESSEE to pay
those items, and all other damages, costs, expenses and sums that
the LESSOR may suffer or incur, or that may become due, by reason
of any default of the LESSEE or failure of the LESSEE to comply
with the terms and conditions of this Lease shall be deemed to be
Additional Rent, and in the event of non payment, the LESSOR shall
have all of the rights and remedies as hereinafter provided for
failure to pay Rent.
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If any payment of the Rent is not
received by the LESSOR within fifteen (15) days of the date
when due, the LESSEE shall additionally pay to the LESSOR a late
charge of Five Percent (5%) of the amount of the delinquent
payment.
The LESSEE shall deposit with the
LESSOR at the time of signing of this Lease Four Thousand and
no/100 Dollars ($4,000.00) Dollars as security for the performance
of the LESSEE’S obligations under this Lease. If the LESSEE
shall default in the performance of any of the terms and provisions
of this Lease, LESSOR may apply the damage deposit towards the
payment of any damage or liability caused by such default. Provided
the LESSEE is not in default of the performance of the terms and
provisions hereof, the damage deposit shall be returned to the
LESSEE at the conclusion of the term of this Lease. Any such
deposit shall not bear interest and may be commingled with other
funds of the LESSOR.
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3.
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POSSESSION.
Except as herein provided, the
LESSOR shall deliver possession of the Leased Premises in the
condition required by this Lease on or before the Effective Date,
subject to unavoidable delays beyond the LESSOR’S control,
but delivery of possession prior to the Effective Date shall not
affect the expiration date of this Lease. If the Leased
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Premises shall not be available
to the LESSEE for occupancy on the first day of the Term, the
LESSOR shall not be liable to the LESSEE for damages, but a pro
rata part of the Fixed Rent shall be abated until the Leased
Premises are ready for occupancy. The taking of possession of the
Leased Premises by the LESSEE shall be conclusive evidence that the
Leased Premises are in the agreed condition at the commencement of
the Term.
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4.
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UNLAWFUL
USE. The LESSEE agrees
not to commit or permit any act to be performed on the Leased
Premises or any omission to occur which will be in violation of any
statute, regulation or ordinance of any governmental body, which
will increase the insurance rate on the Leased Premises or which
will be in violation of any insurance policy carried on the Leased
Premises by the LESSOR. The LESSEE shall not disturb other
occupants of the building by making any undue noise or otherwise
and shall not do or permit to be done in or about the Leased
Premises anything which will be dangerous to life or
limb.
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5.
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LESSOR’S ACCESS. The LESSOR, its employees and its agents shall
have the right to enter the Leased Premises at all reasonable times
for the purpose of inspecting, cleaning, repairing, altering or
improving the Leased Premises or to exhibit the Leased Premises to
prospective lessees, purchasers or other parties. Nothing in this
section shall be interpreted as requiring the LESSOR to perform any
such acts independent of the requirements of the other provisions
of this Lease. The LESSOR shall also be permitted to enter the
Leased Premises for the purpose of posting notices of
non-responsibility for alterations, additions and
repairs.
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6.
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IMPROVEMENTS, ALTERATIONS AND
REMODELING. It is
understood and agreed that the LESSEE may make improvements or
alterations to the Leased Premises only upon obtaining the written
consent of the LESSOR. Notwithstanding anything to the contrary in
this Lease, painting of the Leased Premises and any remodeling work
which would cost Five Hundred and no/100 Dollars ($500.00) or less
if completed by a contractor does not require the written consent
of the LESSOR.
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Any remodeling work will be
completed at the sole expense of the LESSEE who agrees to complete
any remodeling in a good and workmanlike fashion, The LESSEE also
agrees that any resulting damage to the structure of the Leased
Premises, together with the costs of reconstruction, repair and
maintenance, would be the sole obligation of the LESSEE. The LESSEE
further agrees that it will not create or permit to accrue any
liens, mechanic’s liens, encumbrances or adverse claims
against the real estate and the Leased Premises which would
constitute a lien or claim against the LESSOR’S interest in
the property. The LESSEE agrees to pay the LESSOR all amounts,
costs and expenses, including reasonable attorneys’ fees,
incurred by the LESSOR to remove any such lien or adverse claim.
Further, all improvements made in the course of remodeling and
during the Term shall remain with the real estate and shall become
the property of the LESSOR.
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7.
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CARE OF
LEASED PREMISES. Subject
to Section 2 of this Lease, all care, maintenance and repair
of the Leased Premises shall be the sole responsibility of the
LESSEE and shall be performed at the discretion and expense of the
LESSEE. In the event any such care, maintenance or repair is
performed by the LESSOR or its designees, the LESSOR shall be
entitled to reimbursement therefor pursuant to the provisions
contained in Section 2 hereof.
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8.
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MANAGEMENT
OF PREMISES. During the
Term, the LESSEE shall assume all managerial responsibilities and
duties with respect to the Leased Premises and any lessees
thereof.
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9.
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WARRANTIES
OF TITLE AND QUIET POSSESSION. The LESSOR covenants that the LESSOR has the
right to make this Lease subject to the terms hereof, and the
LESSEE shall have quiet and peaceful possession of the Leased
Premises during the Term as against the acts of all parties
claiming title to, or a right to the possession of, the Leased
Premises.
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10.
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ASSIGNMENT
AND SUBLETTING . The
LESSEE may, without the LESSOR’S consent, assign this Lease
to a corporation with which the LESSEE may merge or consolidate, to
any subsidiary of the LESSEE, to any business entity under common
control with the LESSEE or to a purchaser of substantially all of
the LESSEE’S assets. Except as set forth above, the LESSEE
shall not sublease all or any part of the Leased Premises, or
assign this Lease in whole or in part without the LESSOR’S
prior written consent. Consent by the LESSOR to one assignment of
this Lease or to one subletting of the Leased Premises shall not be
a waiver of the LESSOR’S rights under this Lease as to any
subsequent assignment or subletting. The LESSOR’S rights to
assign this Lease are and shall remain unqualified.
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11.
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EMINENT
DOMAIN. If the Leased
Premises are taken by any public authority under the power of
eminent domain or sold to any public authority pursuant to threat
of eminent domain, the LESSEE shall receive a proportionate share
of the damages it has suffered for the loss of the remainder of its
lease. These damages shall be mutually agreeable to the
governmental authorities exercising the power of eminent domain, to
the LESSOR and to the LESSEE. In the event that there is not
mutuality of agreement, the division of the damages shall be
determined by arbitration as provided in Section 36
hereof.
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12.
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FIRE AND
OTHER CASUALTY. If fire
or other casualty shall render the Leased Premises untenantable,
this Lease shall terminate forthwith, and any prepayments of Rent
shall be refunded by the LESSOR pro rata; provided, however, that
if the Leased Premises can be repaired within ninety (90) days
from the date of such event, then at the LESSOR’S option, by
notice in writing to the LESSEE, mailed within thirty
(30) days after such damage or destruction, this Lease shall
remain in full effect but the Rent for the period during which the
Leased Premises are untenantable shall be abated pro
rata.
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13.
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INSURANCE. It shall be the responsibility of the LESSEE to
assure that the Leased Premises are covered by hazard and public
liability insurance policies. The hazard insurance policies shall
insure the Leased Premises against loss or damage by fire and other
perils as required by the Minnesota Standard Fire Insurance Policy
and extended coverage endorsements. Property damage shall be
insured against in the amount of Eight Hundred Fifty Thousand and
no/100 Dollars ($850,000.00). The public liability insurance policy
shall provide coverage at least in the amount of One Million and
no/100 Dollars ($1,000,000.00) per incident. The payment of the
premiums therefor shall be made by the LESSEE as Additional Rent,
and in the event the LESSEE chooses to maintain the current
policies, a proration as of the commencement of the Term of any
prepaid premiums shall be made. The LESSEE shall provide a copy of
the insurance coverage required under this section to the LESSOR
and said insurance coverage shall name the LESSOR as an additional
insured.
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14.
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SURRENDER. On the last day of the Term or on the sooner
termination thereof, the LESSEE shall peaceably surrender the
Leased Premises in good condition and repair, reasonable wear and
tear expected, consistent with the LESSEE’S duty to make
repairs as provided in Sections 2 and 6 hereof. On or before the
last day of the Term or the sooner termination thereof, the LESSEE
shall at its expense remove all of its equipment from the Leased
Premises, and any property not removed shall be deemed abandoned.
All alterations, addition and fixtures, other than the
LESSEE’S equipment, which have been made or installed by
either the LESSOR or the LESSEE on the Leased Premises shall remain
as the LESSOR’S property and shall be surrendered with the
Leased Premises as a part thereof. If the Leased Premises are not
surrendered at the end of the Term or the sooner termination
thereof, the LESSEE shall indemnify the LESSOR against any loss or
liability resulting from delay of the LESSEE in so surrendering the
Leased Premises, including without limitation claims made by any
succeeding lessee founded on such delay. The LESSEE shall promptly
surrender all keys for the Leased Premises to the LESSOR at the
place then fixed for payment of Rent and shall inform the LESSOR of
combinations of any locks or safes on the Leased Premises. In no
event shall the LESSEE be deemed to have abandoned the Leased
Premises or this Lease during the Term unless the LESSEE first
obtains the express permission of the LESSOR. The provisions of
this section shall survive the termination of this
Lease.
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15.
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HOLDING
OVER. In the event that
the LESSEE remains in possession of th
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