Lightpath Technologies Inc 8-K, filed May 17, 2021
Lightpath Technologies Inc (LPTH)
8-K
2021-05-17
For: 2021-05-12
View Original
Added on
April 10, 2026
About this 8-K
Lightpath Technologies Inc filed this 8-K on May 17, 2021, reporting on events of May 12, 2021.
Items reported
- Item 1.01: Entered into a material agreement
- Item 9.01: Financial statements and exhibits
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
May 12, 2021
Date of Report (Date of earliest event reported)
LIGHTPATH TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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000-27548
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86-0708398
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(State or other jurisdiction of incorporation or
organization)
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(Commission File Number)
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(I.R.S. Employer Identification Number)
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2603 Challenger Tech Court, Suite 100
Orlando, Florida 32826
(Address of principal executive office, including zip
code)
(407) 382-4003
(Registrant’s telephone number, including area
code)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐ Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to
Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the
Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Class A Common Stock, par value $0.01
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LPTH
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The Nasdaq Stock Market, LLC
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Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (17 CFR
§230.405) or Rule 12b-2 of
the Securities Exchange Act of 1934 (17 CFR §240.12b-2 of this
chapter).
Emerging
growth company ☐
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards providing
pursuant to Section 13(a) of the Exchange Act. ☐
LightPath
Technologies, Inc.
Form
8-K
Item 1.01 Entry Into a Material Definitive Agreement
On May
12, 2021, the Company and Challenger-Discovery, LLC (the
“Landlord”) entered into an Eighth Amendment to Lease
(the “Lease Amendment”), effective April 30, 2021,
related to the Company’s headquarters and manufacturing
facility located at 2603 Challenger Tech Court, Orlando, Florida
32826. The Lease Amendment materially amends certain terms of the
original Lease dated January 25, 2001, as amended by the First
Amendment to Lease dated August 10, 2001, the Second Amendment to
Lease dated April 20, 2004, the Third Amendment to Lease dated
December 1, 2007, the Fourth Amendment to Lease dated April 30,
2009, the Fifth Amendment to Lease dated April 24, 2012, the Sixth
Amendment to Lease dated July 2, 2014, and the Seventh Amendment to
Lease dated January 31, 2015 (collectively, the
“Lease”) between the Company and the Landlord,
including the following:
●
The rentable area
of the leased premises will increase from 25,847 square feet to
52,184 square feet upon Landlord’s completion of certain work
to the leased premises.
●
The lease term was
extended from April 30, 2022, to that certain date that is one
hundred twenty-seven (127) months after the date the Landlord
completes certain work to be done at the leased premises (the
“Extension Term”).
●
The minimum rental
rates for the Extension Term are based on annual increases of
approximately three percent (3%). Upon commencement of the
Extension Term, the Company’s proportionality share of
operating expenses will increase to 53.58%.
●
The monthly minimum
rent due for the first two (2) months of the Extension Term will be
abated, provided the Company is not in default under the terms of
the Lease. If the Landlord elects to terminate the Lease or the
Company’s right of possession as a result of an uncured
default by the Company, the unamortized amount of the abated rent
will become due and payable. The aggregate amount of the monthly
minimum rent abated during these two months equals approximately
$132,634. Prior to the commencement date of the Extension Term, the
Company will continue to pay the current monthly minimum rent set
forth under the terms of the Lease. If the Landlord has not
completed its work to the leased premises by May 1, 2022, the
monthly minimum rent will be approximately $32,847 (until such work
is completed and the leased premises is expanded).
●
The Landlord will
provide the Company with temporary space consisting of
approximately 8,285 square feet of space during the completion of
the Landlord’s work to the expanded premises. The Company
will not be charged monthly minimum rent for the temporary space,
but will be required to pay Landlord operating expenses and Florida
state sales tax thereon with respect to such space.
●
There is one,
5-year extension option exercisable by the Company. The minimum
rental rates for such additional extension option will be
determined at the time an option is exercised and will be based on
a “fair market rental rate” as determined in accordance
with the Lease Amendment.
●
The Company has a
one-time right of first offer to lease additional space in the
building that is contiguous to the leased premises, subject to the
terms and conditions set forth in the Lease Amendment. The terms of
the right of first offer will be based on the “fair market
rental rate.” Further, any right of first offer applies only
with respect to the entire offered premises and may not be
exercised with respect to only a portion thereof.
The
additional space is intended, in part, to replace the 12,378 square
feet currently leased at 12501 Research Parkway, which lease
expires November 30, 2022 and will not be
renewed.
The
foregoing description of the terms of the Lease Amendment does not
purport to be complete and is qualified in its entirety by
reference to the full text of the Lease Amendment, a copy of which
is attached hereto as Exhibit 10.1.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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Exhibit No.
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Description
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Eighth Amendment to Lease dated as of May 12, 2021, between
LightPath Technologies, Inc. and Challenger Discovery
LLC
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this Report to be signed in
its behalf by the undersigned, thereunto duly
authorized.
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LIGHTPATH TECHNOLOGIES, INC.
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Dated: May 17, 2021
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By:
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/s/ Albert Miranda
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Albert Miranda
Chief Financial Officer
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Exhibit 99.1
EIGHTH AMENDMENT TO LEASE
THIS EIGHTH AMENDMENT TO LEASE (this
“Amendment”) is entered into as of April 30, 2021,
by and between CHALLENGER-DISCOVERY, LLC, a Delaware
limited liability company (“Landlord”), and LIGHTPATH TECHNOLOGIES, INC., a Delaware
corporation (“Tenant”).
RECITALS:
A. Landlord (or its
predecessor in interest) and Tenant entered into that certain Lease
dated January 25, 2001, as amended by that certain (i) First
Amendment to Lease dated August 10, 2001, (ii) Second Amendment to
Lease dated April 20, 2004, (iii) Third Amendment to Lease dated
December 1, 2007, (iv) Fourth Amendment to Lease dated April 30,
2009, (v) Fifth Amendment to Lease dated April 24, 2012, (vi) Sixth
Amendment to Lease dated July 2, 2014 (the “6th
Amendment”), and (vii)
Seventh Amendment to Lease dated January 31, 2015 (collectively,
the “Lease”),
pursuant to which Tenant leases from Landlord that certain premises
commonly known as Suites 100 and 130 consisting of approximately
25,847 of total square feet of rentable area in the building
located at 2603 Challenger Parkway, Orlando, Florida 32826,
currently known as Challenger Tech Center, Phase III (the
“Original
Premises”).
B. The Lease for the
Original Premises expires on April 30, 2022 and Tenant and Landlord
desire to extend the term of the Lease as set forth
therein.
C. Landlord and Tenant
have also agreed that Tenant will expand the Original Premises to
include Suites 145-180 which consists of approximately 26,337
square feet of rentable area (the “Expansion Premises”) for a total
of 52,184 square feet of rentable area (collectively, with the
Original Premises, the “Premises”). The Premises is more
fully depicted on Exhibit A
attached hereto.
D. Landlord and Tenant
have agreed to amend the terms of the Lease as provided below.
Capitalized terms not otherwise defined in this Amendment shall
have the definitions set forth in the lease.
AGREEMENT:
NOW, THEREFORE, in consideration of the
mutual covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree to amend the Lease as
follows:
1. Extension of Term
for Original Premises. The term of the Lease for the
Original Premises shall be extended, such term commencing on May 1,
2022 and expiring at the expiration of the Expansion Premises Term
(defined below) (the “Extension Term”). All of the terms
and provisions of the Lease shall continue to apply with respect to
the Extension Term, except as specifically modified
herein.
2. Expansion Premises
Term. The term for the Expansion Premises shall commence on
completion of Landlord’s Work (as defined in the Work
Letter), in accordance with the Work Letter (attached hereto and
defined in Section 7 below) (the “EPCD”) and shall continue for one
hundred twenty-seven (127) months (the “Expansion Premises Term”), except
that if the EPCD is not the first (1st) day of a calendar
month, the Expansion Premises Term shall be extended for the
remainder of that calendar month. For purposes of clarity, from and
after the EPCD, the Extension Term and Expansion Premises Term
shall be coterminous and may be referred to herein sometimes
collectively as the “Extension Lease Term”. All of the
terms and provisions of the Lease shall apply with respect to the
Expansion Premises Term, except as specifically modified
herein.
3. Annual Minimum
Rent. Commencing
on the EPCD*, the Annual Minimum Rent shall thereafter be as
follows for the Premises (i.e. the combined Original Premises and
Expansion Premises):
Premises (52,184
SF)
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Period
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RSF
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Annual Minimum Rent
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Monthly Minimum Rent
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EPCD-Month 2**
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$0.00
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$0.00
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$0.00
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Months 3-12
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$15.25
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$795,806.00
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$66,317.17
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Months 13-24
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$15.71
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$819,810.64
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$68,317.55
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Months 25-36
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$16.18
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$844,337.12
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$70,361.43
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Months 37-48
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$16.67
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$869,907.28
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$72,492.27
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Months 49-60
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$17.17
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$895,999.28
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$74,666.61
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Months 61-72
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$17.69
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$923,134.96
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$76,927.91
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Months 73-84
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$18.22
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$950,792.48
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$79,232.71
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Months 85-96
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$18.77
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$979,493.68
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$81,624.47
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Months 96-108
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$19.33
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$1,008,716.72
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$84,059.73
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Months 109-120
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$19.91
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$1,038,983.44
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$86,581.95
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Months 120-127
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$20.51
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$1,070,293.84
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$89,191.15
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*The
parties acknowledge that Tenant shall continue to pay Monthly
Minimum Rent for the Original Premises in accordance with the Lease
(i.e. the current rent schedule) until the EPCD (if the EPCD has
not occurred on or before May 1, 2022, Tenant shall pay Monthly
Minimum Rent in the amount of $32,847.23 until the
EPCD).
**Notwithstanding
anything to the contrary contained herein, so long as Tenant is not
in default under the Lease, that is not cured during any applicable
grace or curative period, Tenant’s obligation to pay the
Monthly Minimum Rent otherwise due for the Premises for the first
two (2) calendar months following the EPCD shall be abated (the
“Minimum Rent Abatement”).
If
Landlord elects to terminate the Lease or Tenant’s right to
possession of the Premises due to a default not cured during any
applicable grace or curative period, then (i) the portion of the
Minimum Rent Abatement unamortized as of the date of such default
(with the Minimum Rent Abatement being deemed to have been
amortized in equal monthly installments (without interest) over the
Expansion Premises Term commencing on the EPCD, shall immediately
become due and payable; and (ii) Tenant shall not be entitled to
any further abatement of the Monthly Minimum Rent pursuant to this
paragraph. The payment by Tenant of the Minimum Rent Abatement in
the event of a default shall not limit or affect any of
Landlord’s other rights or remedies, in the event of a
default by Tenant, pursuant to the Lease or at law or in
equity.
4. Additional
Rent. Tenant’s proportionate share of Operating
Expenses commencing on the EPCD shall be 63.58%. The Operating
Expenses for the Premises for 2021 are estimated to be
approximately $5.43 per square foot.
5. Florida Sales
Tax. Pursuant to the Lease, Tenant must pay all applicable
Florida State Sales Taxes related to its tenancy. The Florida State
Sales Taxes shall be paid concurrently with each installment of
Monthly Minimum Rent for the Premises.
6. Security
Deposit. Landlord shall continue to hold the Security
Deposit in the amount of $27,736.67 pursuant to Section 4.5 of the
Lease.
7. Tenant
Improvements. All improvements described in this Amendment
to be constructed in and upon the Original Premises and Expansion
Premises are described in the Work Letter attached hereto as
Exhibit
B (the “Work
Letter”). Other than with respect to Landlord’s
Work, Tenant accepts the Expansion Premises in its
“as-is” condition and Landlord shall have no obligation
to perform any work at the Expansion Premises (or the Original
Premises).
8. Temporary
Space. Subject to the limitations set forth below, Tenant
shall have temporary use and occupancy of Suite 145 at the
Building, consisting of approximately 8,285 square feet of space
(the “Temporary
Space”), during the completion of Landlord’s
Work in order to accommodate Tenant’s business during
construction. Tenant’s use of the Temporary Space shall be
subject to all terms and conditions of the Lease. Tenant’s
use of the Temporary Space shall also be subject to the use of
Genoa Healthcare (“Genoa”) of the back room of the
Temporary Space for storage (consisting of a few hundred square
feet of space). Genoa accesses such area though an exterior access
door, but Tenant shall acknowledge and cooperate with Genoa’s
use. Genoa’s use of such space shall exist until their
buildout is complete, which is anticipated for late June 2021 and
Tenant shall not have use of such space until that time. Further,
Tenant shall not be charged Monthly Minimum Rent for the Temporary
Space, but shall pay to Landlord all Operating Expenses and Florida
State Sales Tax thereon for the Temporary Space. Upon the
completion of Landlord’s Work, Tenant’s occupancy of
the Temporary Space shall expire.
9. Parking.
From and after the EPCD,
Tenant shall be entitled to additional parking spaces in accordance
with the ratio (5 parking spaces per 1,000 square feet) set forth
in Section 16.9 of the Lease.
10. Renewal
Option. Landlord hereby grants to Tenant the option to
extend the Extension Lease Term for the Premises on the same terms,
conditions and provisions as contained in the Lease, as modified
and except as otherwise provided herein, for one (1) period of
five (5) years (the “Option
Period”) commencing on the day following the
expiration of the Extension Lease Term.
(a) Tenant’s
option to extend shall be exercisable by written notice from Tenant
to Landlord given no later than twelve (12) months, prior to the
expiration of the Extension Lease Term, time being of the
essence.
(b) Minimum Rent per
rentable square foot of the Premises payable during the Option
Period shall be at one hundred percent (100%) of the Fair Market
Rental Rate (as hereinafter defined).
(c) Tenant may only
exercise its option to extend, and an exercise thereof shall only
be effective, if at the time of Tenant’s exercise and on the
Option Period commencement date, the Lease is in full force and
effect and no event of default by Tenant has occurred under the
Lease which remains uncured after the giving of any applicable
notice and the expiration of any applicable cure period. In
addition to the condition set forth in the first sentence of this
subparagraph (c), if Tenant is in default under the Lease (after
the giving of any applicable notice and the expiration of any
applicable cure period) within thirty (30) days prior to the Option
Period commencement date, then, at Landlord’s option,
Tenant’s right to exercise its option may be terminated and
rendered null and void by written notice thereof from Landlord to
Tenant. Other than a Permitted Assignee (as defined in the 6th
Amendment), no sublessee or assignee shall be entitled to exercise
such option.
(d) Upon the valid
exercise by Tenant of its option to extend, Landlord and Tenant
shall enter into a written amendment to the Lease confirming the
terms, conditions and provisions applicable to the Option Period as
determined in accordance with the provisions of this Section, with
such revisions to the Rent provisions of the Lease as may be
necessary to conform those provisions to the rental rate applicable
to the Option Period. No new options to extend shall be deemed to
be created by a valid exercise of the extension option and no other
provisions inapplicable to the Option Period such as, but not
limited to, an obligation to construct or pay for construction or
improvements or to grant rent abatements, shall be construed to
govern the Option Period.
(e) For purposes of
this Section, the term “Fair
Market Rental Rate” shall mean a rate comprised of
(i) the prevailing base rental rate per square foot of
rentable area available in the Pertinent Market (as defined below),
and taking into account tenant improvement allowances, other tenant
inducements, operating cost stops and tax cost stops, and brokerage
commissions, all as determined by an MAI appraiser mutually
acceptable to Landlord and Tenant in their reasonable discretion,
and (ii) any escalation of any such base rental rate (based
upon a fixed step and/or index) prevailing in the Pertinent Market,
as also determined by said appraiser, taking into account
(A) comparable lease renewals (on the basis of factors such
as, but not limited to, size and location of space and commencement
date and term of lease), if any, recently executed for improved
space in the Building, and (B) lease renewals for comparable
(on the basis of factors such as, but not limited to, size and
location of space and commencement date and term of lease) improved
space in “flex” buildings in the Research Park and/or
Quadrangle which are comparable to the Building in reputation,
quality, age, size, location and level and quality of services
provided and which have reached economic stabilization and are not,
for any other reason, offering below market rents (the foregoing
factors not being exclusive in identifying comparable buildings)
(the Building, together with such comparable buildings, if
applicable, being herein referred to as the “Pertinent Market”). Tenant may,
after the determinations of the appraiser set forth above, elect to
withdraw its notice of renewal at no obligation or expense of
Tenant and, in such event, the Term shall not be extended and
Tenant shall lose its renewal option. The cost of the appraiser
shall be paid 50% by Tenant and 50% by Landlord.
11. Right
of First Offer. Subject to the right(s) of tenants of the
Building existing as of the date of execution of this Eighth
Amendment, and held by other tenants in the Building, during the
Extension Term, Tenant shall have a one-time right of first offer
(“Right of First
Offer”) to lease additional space in the Building,
which is contiguous to the Premises (the “Offer Space”). Notwithstanding the
foregoing, if Landlord presents Offer Space to Tenant prior to the
EPCD and Tenant declines to exercise Tenant’s Right of First
Offer with respect to the same, Tenant shall have an additional
one-time Right of First Offer for Offer Space after the EPCD. The
terms of the Right of First Offer shall be based on the Fair Market
Rental Rate (as defined in Section 9 above) of the Offer Space. If
Landlord intends to market the Offer Space to an unaffiliated third
party, Landlord shall first present the offer, in writing, to
Tenant, and Tenant shall thereafter have ten (10) business days in
which to accept or reject that offer by notice to Landlord upon the
above described terms. The Right of First Offer shall apply only
with respect to the entire Offer Space, and may not be exercised
with respect to only a portion thereof. If Tenant rejects that
offer or fails to accept the same in writing within such time
period, then Landlord shall be free to market and lease the Offer
Space to the third party.
The
Right of First Offer shall, at Landlord’s election, be null
and void if an Event of Default exists at the date Landlord would
otherwise notify Tenant of the offer concerning the Offer Space or
at any time thereafter and before commencement of the lease for the
Offer Space. After Tenant validly exercises the Right of First
Offer provided in the Lease, the parties shall either execute an
amendment to the Lease adding the Offer Space, or enter into a new
lease for the Offer Space, or enter into such other documentation
as Landlord shall reasonably require, in a form reasonably
acceptable to Tenant, promptly after Landlord shall prepare the
same, confirm the leasing of such Offer Space to Tenant, but an
otherwise valid exercise of the Right of First Offer contained in
the Lease shall be fully effective, whether or not such
confirmatory documentation is executed. Other than the economic
terms as set forth above, the lease terms for the Offer Space shall
correspond to the terms of the Lease.
If
Tenant shall exercise the Right of First Offer, Landlord does not
guarantee that the Offer Space will be available on the
commencement date for the lease thereof if the then existing
occupants of the Offer Space shall holdover, or for any other
reason beyond Landlord’s reasonable control. In that event,
Tenant’s sole recourse shall be that the Minimum Rent with
respect to the Offer Space shall be abated until Landlord legally
delivers the same to Tenant. Tenant’s exercise of the Right
of First Offer shall not operate to cure any default by Tenant of
any of the terms or provisions in the Lease, nor to extinguish or
impair any rights or remedies of Landlord arising by virtue of such
default. The Right of First Offer is personal to Tenant and may not
be exercised or enjoyed by any other person. If the Lease or
Tenant’s right to possession of the Premises shall terminate
in any manner whatsoever before Tenant shall exercise the Right of
First Offer, or if Tenant shall have subleased or assigned over 50%
of its interest in the Premises or its right to possess all or any
portion of the Premises (other than in either case to a Permitted
Assignee), then the Right of First Offer shall be of no force and
effect. Under no circumstances shall a subtenant under a sublease
of the Premises, or the assignee under a full or a partial
assignment of the Lease (other than a Permitted Assignee), have any
right to exercise the Right of First Offer granted in the
Lease.
12. Brokers.
Landlord and Tenant each represent and warrant to the other that
the only brokers they have dealt with in connection with this
Amendment are Avison Young-Florida and Foundry Commercial whose
commissions and fees (if any) shall be paid by Landlord pursuant to
a separate written agreement. Landlord and Tenant each agree to
defend, indemnify and hold the other harmless from and against all
claims by any other broker for fees, commissions or other
compensation to the extent such broker alleges to have been
retained by the indemnifying party in connection with the execution
of this Amendment. The provisions of this paragraph shall survive
the expiration or sooner termination of the Lease.
13. Miscellaneous.
Except as modified herein, the Lease and all of the terms and
provisions thereof shall remain unmodified and in full force and
effect as originally written. In the event of any conflict or
inconsistency between the provisions of the Lease and the
provisions of this Amendment, the provisions of this Amendment
shall control. All terms used herein but not defined herein which
are defined in the Lease shall have the same meaning for purposes
hereof as they do for purposes of the Lease. The Recitals set forth
above in this Amendment are hereby incorporated by this reference.
This Amendment shall be binding upon and shall inure to the benefit
of the parties hereto and their respective beneficiaries,
successors and assigns.
14. Counterparts.
This Amendment may be executed in any number of counterparts and by
each of the undersigned on separate counterparts, which
counterparts taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have
executed this Eighth Amendment to Lease as of the day and year
first above written.
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LANDLORD:
CHALLENGER-DISCOVERY, LLC, a Delaware limited liability
company
By:
/s/ Steven C. Heetland
Name:
Steven C. Heetland
Title:
CEO/CFO/Manager
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TENANT:
LIGHTPATH TECHNOLOGIES, INC., a Delaware
corporation
By:
/s/ Shmuel Rubin
Name:
Shmuel Rubin
Title:
Chief Executive Officer
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Exhibit A
Premises
(see
attached)
Exhibit B
Work Letter
1. This Work Letter
shall set forth the obligations of Landlord and Tenant with respect
to the preparation of the Expansion Premises and Original Premises.
All improvements described in this Work Letter to be constructed in
and upon the Premises by Landlord are hereinafter referred to as
“Landlord’s
Work”. Certain of Landlord’s Work is more
particularly described on Attachment #1. Landlord and Tenant
acknowledge that Plans (hereinafter defined) for Landlord’s
Work have not yet been prepared and, therefore, it is impossible to
determine the exact cost of Landlord’s Work at this time.
Accordingly, Landlord and Tenant agree that Landlord’s
obligation to pay for the cost of Landlord’s Work shall be
limited to an amount equal to $1,085,574.00 (being $42.00 per
square foot) for the Original Premises and $1,316,850.00 (being
$50.00 per square foot) for the Expansion Premises, totaling
$2,402,424.00 (collectively, the “Construction Allowance”) and that
Tenant shall be responsible for the cost of Landlord’s Work
to the extent that it exceeds the Construction Allowance.
Notwithstanding the calculation of the Construction Allowance, the
Construction Allowance shall be available for the entire Premises
and not separately allocated to the Expansion Premises or Original
Premises. If the actual cost of Landlord’s Work is less than
the Construction Allowance, Tenant shall not be entitled to any
further credit, payment or abatement on account thereof. Landlord
shall competitively bid Landlord’s Work among at least three
(3) general contractors, one (1) of which may be Tenant’s
choice. Landlord shall review the contractor bid responses to
ensure consistent qualifications and considerations. Thereafter,
Landlord and Tenant shall mutually agree upon a general contractor
to perform the Landlord’s Work and Landlord shall enter into
a direct contract for Landlord’s Work with such general
contractor. In addition, Landlord shall have the right to select
and/or approve (which shall not be unreasonably withheld,
conditioned or delayed) of any subcontractors used in connection
with Landlord’s Work. Landlord shall oversee Landlord’s
Work and Tenant shall pay to Landlord (which may be paid out of the
Construction Allowance) a total construction management fee equal
to three percent (3%) of the Construction Allowance and one percent
(1%) on the remaining balance of the cost of Landlord’s Work.
Tenant may also select and contract with, on Tenant’s own
behalf, a third-party construction manager (“Tenant’s Manager”) to
coordinate and attend (at Tenant’s discretion) to all or some
of Tenant’s obligations under this Work Letter. Tenant shall
be responsible for compensating Tenant’s Manager, but the
Construction Allowance may be utilized by Tenant to pay such fees.
Tenant shall also be allowed to utilize, at its sole discretion,
the Construction Allowance for (a) all customary hard and soft
costs associated with design and construction, (b) data
telecommunications cabling, equipment, and installation, (c)
furniture fixtures, and equipment, (d) security equipment, (e)
moving expenses of any kind, and (f) payment of its project
management fees.
2. The parties
acknowledge that Landlord paid Farmer Architecture (the
“Architect”) for
one (1) space plan and one (1) revision. Landlord and Tenant
acknowledge and agree that the space plan as of the date of
execution of this Amendment is preliminary and conceptual in nature
and is subject to change as required by Tenant. All future space
planning, architectural and engineering (mechanical, electrical and
plumbing) drawings for Landlord’s Work shall be prepared by
the Architect at Tenant’s sole cost and expense, subject to
funding through the Construction Allowance. The space planning,
architectural and mechanical drawings are collectively referred to
herein as the “Plans”.
3. Tenant shall
deliver to Landlord any information reasonably requested by
Landlord and shall deliver to Landlord Tenant’s approval or
disapproval of any preliminary or final layout, drawings, or plans
within five (5) business days after written request. Any
disapproval shall be in writing and shall set forth in reasonable
detail the reasons for such disapproval. Tenant and the Architect
shall devote such time in consultation with Landlord and
Landlord’s engineer as may be required to provide all
information Landlord and Tenant deem necessary in order to enable
the Architect and engineer to complete, and obtain Tenant’s
written approval of the Plans for Landlord’s Work by not
later than fifteen (15) days following the date Tenant receives
final proposed Plans that are consistent with the final space
planning drawings approved by Landlord and Tenant (the
“Plans Due
Date”). In the event that Tenant fails to approve the
Plans by the Plans Due Date, Tenant shall be responsible for one
(1) day of Delay (as hereinafter defined) for each day during the
period beginning on the day following the Plans Due Date and ending
on the date Tenant approves the Plans. Neither the approval of the
Plans nor the supervision of Landlord’s Work by Landlord
shall constitute a representation or warranty by Landlord as to the
accuracy, adequacy, sufficiency and propriety of the Plans;
provided, however, Landlord does represent and warrant the quality
of workmanship with respect to Landlord’s Work and the
compliance of Landlord’s Work with applicable
law.
4. Prior to commencing
any construction of Landlord’s Work, Landlord shall submit to
Tenant a written estimate setting forth the anticipated cost of
Landlord’s Work, including, but not limited to, labor and
materials, architect’s fees, contractor’s fees and
permit fees. Within ten (10) days thereafter, Tenant shall either
notify Landlord in writing of its approval of the cost estimate, or
specify its objections thereto in reasonable detail and any desired
changes to the proposed Landlord’s Work. In the event Tenant
notifies Landlord of such objections and desired changes, Tenant
shall work with Landlord in good faith to alter the scope of
Landlord’s Work in order to reach a mutually acceptable
alternative cost estimate.
5. If Landlord’s
estimate (approved by Tenant) and/or the actual cost of
Landlord’s Work shall exceed the maximum Construction
Allowance (such excess being herein referred to as the
“Excess Costs”),
Tenant shall pay to Landlord such Excess Costs as pay applications
are presented to Tenant’s Manager, reviewed, and approved,
following the payment terms of the construction contract. Landlord
shall not be required to proceed with Landlord’s Work until
Tenant pays such Excess Costs in the manner described and any delay
in the completion of Landlord’s Work due to a delay by Tenant
in making such payment shall be deemed a Delay pursuant to the
Lease. The invoices paid by Landlord to the contractors performing
the Landlord’s Work shall be conclusive for purposes of
determining the actual cost of the items described therein. Excess
Costs constitute Rent payable pursuant to the Lease, and the
failure to timely pay same constitutes an event of default under
the Lease. In the event the actual Excess Costs are less than any
estimated Excess Costs paid by Tenant to Landlord, Landlord shall
reimburse Tenant for the difference within fifteen (15) business
days after completion of Landlord’s Work.
6. If Tenant shall
request any changes to Landlord’s Work that are approved by
Landlord (the “Change
Orders”), Landlord shall have any necessary revisions
to the Plans prepared, and Tenant shall reimburse Landlord on
demand for the cost of preparing such revisions (subject to funding
through the Construction Allowance). Landlord shall notify Tenant
in writing of the estimated increased cost, if any, which will be
chargeable to Tenant by reason of such Change Orders, which
increased cost shall be (subject to funding through the
Construction Allowance) deemed Excess Costs hereunder and shall be
subject to the provisions of Paragraph 5 above. Tenant shall,
within five (5) business days after receiving Landlord’s
estimate of the cost of the Change Order, notify Landlord in
writing whether it desires to proceed with such Change Order. In
the absence of such written authorization, Landlord shall give
additional written notice thereof to Tenant and have the option to
continue work on the Premises disregarding the requested Change
Order, or Landlord may elect to discontinue work on the Premises
until it receives notice of Tenant’s decision, in which event
Tenant shall be responsible for any Delay in completion of
Landlord’s Work resulting therefrom. Following approval of
the Plans and the payment by Tenant of the required portion of the
Excess Costs, if any, Landlord shall cause Landlord’s Work to
be constructed substantially in accordance with the approved Plans,
so long as no default of Tenant (after the giving of applicable
notice and the expiration of applicable cure period) shall occur
under the Lease.
7. Following approval
of the Plans, Landlord shall cause Landlord’s Work to be
constructed substantially in accordance with the approved Plans, so
long as no default of Tenant (after the giving of applicable notice
and the expiration of applicable cure period) shall occur under the
Lease. Landlord shall notify Tenant upon substantial completion of
Landlord’s Work and the parties shall prepare a punch list of
items to be finalized by Landlord. The phrase “substantially complete” or
“substantial
completion” shall mean that (i) Landlord’s Work
has been completed except for such incomplete items as would not
materially interfere with the use of the Premises for the Permitted
Use, and (ii) a certificate of occupancy has been issued by the
applicable governmental authority for the Expansion
Premises.
8. If Landlord shall
be delayed in substantially completing Landlord’s Work as a
result of the occurrence of any of the following (a
“Delay”):
(a)
Tenant’s
failure to furnish information in accordance with this Work Letter
or to respond to any written request by Landlord for any approval
or information within any time period prescribed, or if no time
period is prescribed, then within five (5) business days of such
written request; or
(b)
Tenant’s
request for materials, finishes or installations that have long
lead times after having first been informed in writing by Landlord
that such materials, finishes or installations will cause a Delay;
or
(c)
Changes in any
plans and specifications requested by Tenant; or
(d)
The performance or
nonperformance by a person or entity employed by on or behalf of
Tenant in the completion of any work in the Premises (all such work
and such persons or entities being subject to prior approval of
Landlord); or
(e)
Any request by
Tenant that Landlord delay the completion of any component of
Landlord’s Work; or
(f)
Any breach or
default by Tenant in the performance of Tenant’s obligations
under the Lease; or
(g)
Tenant’s
failure to pay any amounts as and when due under this Work Letter;
or
(h)
Any delay resulting
from Tenant’s having taken possession of the Expansion
Premises for any reason (other than Tenant’s early access
rights under the Amendment) prior to substantial completion of
Landlord’s Work; or
(i)
Any other delay
chargeable to Tenant, its agents, employees or independent
contractors;
then,
for purposes of determining the EPCD, the date of substantial
completion shall be deemed to be the day that Landlord’s Work
would have been substantially completed absent any such Delay
(provided Landlord notifies Tenant in an email to Don Retreage
(DRetreage@Lightpath.com) within five (5) business days after the
occurrence of such Delay that such Delay has occurred).
Landlord’s Work shall be deemed to be substantially completed
on the date that Landlord’s Work has been performed (or would
have been performed absent any Delay), other than any details of
construction, mechanical adjustment or any other matter, the
non-completion of which does not materially interfere with
Tenant’s use of the Premises. Promptly after the
determination of the EPCD, Landlord and Tenant shall enter into the
Commencement Letter and Acceptance of Expansion Premises (the
“Commencement
Letter”) on the form attached hereto as Exhibit C
setting forth the EPCD, the expiration date of the Lease and any
other dates that are affected by the adjustment of the EPCD. Tenant
shall also provide an Acceptance of Original Premises for
acceptance of the Original Premises in the form attached hereto.
Each of the Commencement Letter and Acceptance of Original Premises
shall identify any minor incomplete items of Landlord’s Work
which shall be identified during a walk-through of the Original
Premises or Expansion Premises, as applicable, by Landlord and
Tenant (the “Punchlist
Items”), which Punchlist Items Landlord shall promptly
remedy. Tenant, within ten (10) days after receipt thereof from
Landlord, shall execute the Commencement Letter or Acceptance of
Original Premises and return the same to Landlord.
9. This Work Letter
shall not be deemed applicable to any additional space hereafter
added to the Premises at any time or from time to time, whether by
any options under the Lease or otherwise, or to any portion of the
Premises or any additions thereto in the event of a future renewal
or extension of the Extension Lease Term, whether by any options
under the Lease or otherwise, unless expressly so provided in the
Lease or any amendment or supplement to the Lease. All capitalized
terms used in this Work Letter but not defined herein shall have
the same meanings ascribed to such terms in the Lease.
Attachment #1
●
As a part of
Landlord’s Work, Landlord (in accordance with the Plans) will
modernize Tenant’s roof top HEPA filtration system and
related roof top equipment and relocate the same below the roof
where reasonable and possible to do so. Patching of the roof
directly relating to such work, if any, shall be included in the
Landlord’s Work.
●
Landlord
acknowledges and agrees that Landlord has previously replaced the
sections of the roof of the Building except in the location of the
Tenant’s roof top HEPA filtration system and related roof top
equipment. Any roof work outside of the scope of patching,
including, but not limited to, any replacement of all or portions
of the roof (even if performed at Landlord’s election as
opposed to the patching contemplated above) shall be performed by
Landlord, but shall not be part of the Landlord’s Work, and
the cost and expense of the same shall be borne by
Landlord.
Exhibit C
Commencement Letter and Acceptance of Expansion
Premises
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LANDLORD:
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CHALLENGER-DISCOVERY,
LLC
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TENANT:
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LIGHTPATH
TECHNOLOGIES, INC.
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EXPANSION
PREMISES:
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Suites
145-180, 2603 Challenger Parkway, Orlando, Florida
32826
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Tenant
hereby accepts the Expansion Premises as being in the condition
required under the Lease, with all Landlord's Work completed
(except for minor punchlist items which Landlord agrees to
complete).
The
EPCD of the Lease is __________________ and the expiration of the
Expansion Premises Term is _________________________.
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LANDLORD:
CHALLENGER-DISCOVERY, LLC, a Delaware limited liability
company
By:
Name:
Title:
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|
|
|
|
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TENANT:
LIGHTPATH TECHNOLOGIES, INC., a Delaware
corporation
By:
Name:
Title:
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Acceptance of Original Premises
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LANDLORD:
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CHALLENGER-DISCOVERY,
LLC
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TENANT:
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LIGHTPATH
TECHNOLOGIES, INC.
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ORIGNAL
PREMISES:
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Suites
100 and 130, 2603 Challenger Parkway, Orlando, Florida
32826
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Tenant
hereby accepts the Original Premises as being in the condition
required under the Lease, with all Landlord's Work completed
(except for minor punchlist items which Landlord agrees to
complete).
The
expiration of the Extension Term is
____________________.
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LANDLORD:
CHALLENGER-DISCOVERY, LLC, a Delaware limited liability
company
By:
Name:
Title:
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|
|
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TENANT:
LIGHTPATH TECHNOLOGIES, INC., a Delaware
corporation
By:
Name:
Title:
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