FIRST AMENDMENT TO LEASE
Exhibit
10.3
.
FIRST
AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this
“First
Amendment”) is entered into as of the 9th day of January, 2019 (the
“First Amendment Effective
Date”) by and between CIO UNIVERSITY TECH, LLC, a Delaware
limited liability company (“Landlord”), and LIGHTPATH TECHNOLOGIES, INC., a Delaware
corporation (“Tenant”).
W
I T N E S S E T H:
WHEREAS, on or
about April 20, 2018, Landlord, as landlord, and Tenant, as tenant,
entered into that certain Lease (the “Lease”) wherein Tenant leased
certain real property in Orange County, Florida consisting of
approximately 12,378 square feet of rentable area known as Suite
180 located at 00000 Xxxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 (the
“Premises”);
and
WHEREAS, the
Commencement Date under the Lease was December 1, 2018;
and
WHEREAS, Landlord
and Tenant desire to memorialize a rent credit as a full and final
settlement of any amounts that may be due from Landlord to Tenant
as a result of the delivery of the Premises to Tenant after the
Outside Commencement Date; and
WHEREAS, Landlord
and Tenant desire to amend the Lease in certain respects
hereinafter set forth.
NOW
THEREFORE, for and in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant hereby covenant and
agree as follows:
1.
Recitals. The above
recitals are true and correct and are hereby incorporated by this
reference.
2.
Definitions. All
capitalized terms not defined herein shall have the meanings
ascribed to them in the Lease.
3.
Delay Concession.
Landlord shall provide a rent concession to Tenant in the amount of
Twenty-Four Thousand Two Hundred Three and 70/100 Dollars
($24,203.70) (the “DelayConcession”), which Delay
Concession shall be credited against Annual Minimum Rent and
Additional Rent due from Tenant to Landlord for the month of
February 2019. Tenant shall pay any amounts of Annual Minimum Rent
and Additional Rent for February 2019 in excess of the Delay
Concession as they come due under the Lease. The parties
acknowledge that the Delay Concession is a full and final
settlement of amounts owed from Landlord to Tenant as a result of
delivery of the Premises after the Outside Commencement Date
pursuant to Section 2.2 of the Lease.
4.
Brokerage
Commission. Tenant represents and warrants it has dealt with
no broker, agent, or other person representing Tenant in connection
with this First Amendment other than Landlord’s broker, Tower
Realty Partners, Inc. (“Landlord Broker”), and Tenant
shall
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indemnify and hold
Landlord and Landlord’s property manager and leasing agent(s)
harmless from and against any and all claims by any other broker,
agent, or other person claiming a commission or other form of
compensation by virtue of having dealt with Tenant in connection
with the negotiation and execution of this First Amendment,
including all costs, expenses and liabilities incurred by Landlord
in connection with any such claim, including, without limitation,
attorneys’ fees and expenses. Landlord represents and
warrants it has dealt with no broker, agent, or other person
representing Landlord in connection with this First Amendment other
than Landlord Broker and Landlord shall indemnify and hold Tenant
harmless from and against any and all claims by any other broker,
agent, or other person claiming a commission or other form of
compensation by virtue of having dealt with Landlord in connection
with the negotiation and execution of this First Amendment,
including all costs, expenses and liabilities incurred by Tenant in
connection with any such claim, including, without limitation,
attorneys’ fees and expenses. Landlord Broker will be
compensated by Landlord through a separate agreement for any fee or
commission that may be due and payable to Landlord Broker by virtue
of its involvement in this First Amendment.
5.
Miscellaneous.
(a)
Ratification. The
foregoing terms and conditions are hereby incorporated into the
Lease effective as of the First Amendment Effective Date. Except as
specifically amended by the provisions of this First Amendment, the
terms and provisions of the Lease shall continue to control the
rights and obligations of the parties. The Lease, as amended,
contains the entire agreement between Landlord and Tenant as to the
Premises, and there are no other agreements, oral or written,
between Landlord and Tenant relating to the Premises. Tenant
certifies as of the First Amendment Effective Date: (a) that it has
no offsets, defenses, or claims as to its obligations under the
Lease; (b) that there are no defaults existing under the Lease on
the part of either Landlord or Tenant; and (c) there is no existing
basis for Tenant to terminate the Lease.
(b)
Conflict. In the
event of a conflict between the provisions of this First Amendment
and the provisions of the Lease, the provisions of this First
Amendment shall control.
(c)
Successors and
Assigns. This First Amendment shall be binding upon, and
inure to the benefit of, the parties hereto and their respective
successors and assigns.
(d)
No Offer.
Submission of this First Amendment by Landlord or Tenant is not an
offer to enter into this First Amendment. Neither Landlord nor
Tenant shall be bound by this First Amendment until both Landlord
and Tenant have executed it and delivered the same to the other
party.
(e)
Final Agreement.
This First Amendment constitutes the final agreement between the
parties. It is the complete and exclusive expression of the
parties’ agreement on the matters contained in this First
Amendment. All prior and contemporaneous negotiations and
agreements between the parties on the matters contained in this
First Amendment are expressly merged into and superseded by this
First Amendment. The
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provisions of this
First Amendment may not be explained, supplemented, or qualified
through evidence of trade usage or a prior course of dealings. In
entering into this First Amendment, neither party has relied upon
any statement, representation, warranty, or agreement of the other
party except for those expressly contained in this First Amendment.
There are no conditions precedent or approvals of any First parties
to the effectiveness of this First Amendment, other than those (if
any) expressly stated in this First Amendment.
(f)
Counterparts. This
First Amendment may be executed in counterparts, each of which,
when taken together, shall constitute one and the same document. A
facsimile signature of either party shall constitute an original
signature of such party for all purposes and is binding on said
party. This First Amendment is effective upon full execution of
this First Amendment.
(g)
Rules of
Construction. This First Amendment shall be interpreted
without regard to any presumption or rule requiring construction
against the party causing this First Amendment to be drafted. No
inference shall be drawn from the modification or deletion of
versions of the provisions of this First Amendment contained in any
drafts exchanged between the parties before execution of the final
version of this First Amendment that would be inconsistent in any
way with the construction or interpretation that would be
appropriate if the prior drafts had never existed.
(h)
Review by Counsel.
Each party has reviewed this First Amendment and all of its terms
with legal counsel, or had an opportunity to review this First
Amendment with legal counsel, and is not relying on any
representations made to him by any other person concerning the
effect of this First Amendment.
[SIGNATURES
ON THE FOLLOWING PAGES]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this
First Amendment in manner and form sufficient to bind them as of
the day and year first above written.
Signed, sealed and
delivered in the presence of:
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LANDLORD:
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CIO UNIVERSITY TECH, LLC,
a
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Delaware limited
liability company
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By: SCCP CENTRAL
VALLEY GP CORP., a Delaware corporation, as
Manager
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/s/ Xxxx
Xxxxxx
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Print
Name: Xxxx
Xxxxxx
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BY: /s/
Xxxxx
Xxxxxx
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(name of first
witness)
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NAME: Xxxxx
Xxxxxx
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TITLE: President
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/s/ Xxxx
Xxxxxxxxxxx
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Print Name:
Xxxx
Xxxxxxxxxxx
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(name of second
witness)
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Signed, sealed and
delivered in the presence of:
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TENANT:
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/s/ Xxxxxxx
Xxxxxxxx
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LIGHTPATH TECHNOLOGIES, INC.,
a
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Print Name:
Xxxxxxx
Xxxxxxxx
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Delaware
corporation
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(name of first
witness)
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BY:
/s/ J. Xxxxx
Xxxxxx
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/s/ Xxxxxxx X.
Xxxxxxx
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NAME: J. Xxxxx Xxxxxx
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Print Name:
Xxxxxxx X.
Xxxxxxx
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TITLE: President &
CEO
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(name of second
witness)
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