NINTH AMENDMENT TO LEASE
Exhibit 10.1
NINTH AMENDMENT TO LEASE
THIS NINTH AMENDMENT TO LEASE (this
“Amendment”) is entered into as of September _21_,
2021 (“Effective
Date”), 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 Xxxxx 00, 0000, (xxx) 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, (vii) Seventh Amendment to
Lease dated January 31, 2015, and (viii) Eighth Amendment to Lease
dated April 30, 2021 (the “Eighth Amendment”, and
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 0000 Xxxxxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxx 00000, currently known as Challenger Tech
Center, Phase III (the “Original Premises”) and also that
certain premises commonly known as Suites 145-180 consisting of
approximately 26,337 square feet of rentable area in the same
building (the “Expansion
Premises”);
B. On or around
January 23, 2019, Landlord entered into that certain Industrial
Real Estate Lease (the “Xxxxxx Lease”) with XXXXXX INDUSTRIES, INC., a Delaware
corporation (“Xxxxxx”), as tenant, for that
certain premises commonly known as Suite 110 in the same building
(“Suite 110”);
and
C. Tenant and Xxxxxx
have agreed, with the consent of Landlord, to swap certain space,
wherein, (i) Tenant will take possession of a majority of Suite 110
(as depicted on Exhibit A
attached hereto, the “Suite
110 Premises”) and add the Suite 110 Premises to the
Lease and Landlord and Xxxxxx will amend the Xxxxxx Lease to
release the Suite 110 Premises from the Xxxxxx Lease (Xxxxxx will
retain the balance of Suite 110 currently leased by Xxxxxx), and
(ii) Xxxxxx will take possession of Suite 130 (also as shown on
Exhibit
A attached hereto) and add Suite 130 to the Xxxxxx Lease and
Landlord and Xxxxxx will amend the Xxxxx Lease to include Suite 130
in the Xxxxx Lease; and
D. Landlord and Tenant
have agreed, effective as of the Swap Date (as defined in the Swap
Agreement (defined below)), (i) to release Suite 130 from the
Lease, and (ii) expand the combined Original Premises and Expansion
Premises to include the Suite 110 Premises, which consists of
approximately 10,437 square feet of rentable area, for a total of
58,531 square feet of rentable area (collectively, with the
Original Premises (less Suite 130) and Expansion Premises, the
“Premises”). The
Premises (effective as of the Swap Date) is more fully depicted on
Exhibit
B attached hereto; and
E. Prior to the swap
of space described above, by separate agreement between Tenant and
Xxxxxx, and consented to by Landlord (the “Swap Agreement”), Tenant will make
certain modifications to Xxxxx 000 xxx Xxxxx 000 to accommodate the
division of space (the “Suite
110/130 Improvement Work”); and
F. 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. Swap.
a. The term of the
Lease for the Suite 110 Premises shall commence on the Swap Date
and expire on the last day of the Extension Lease Term (as defined
in the Eight Amendment).
b. Effective as of the
Swap Date, Suite 130 is released from the Lease and upon the Swap
Date and thereafter Suite 130 shall not be part of the
Premises.
2. Annual Minimum Rent
with addition of Suite 110 Premises.
a. Commencing on the
Swap Date and until the EPCD (as defined in the Eight Amendment),
Tenant shall pay to Landlord Annual Minimum Rent for the Suite 110
Premises in monthly amount of $13,262.42 (i.e. annually $15.25 per
rentable square foot of the Suite 110 Premises) prorated for any
partial month.
b. Commencing on the
EPCD, the Annual Minimum Rent shall thereafter be as set forth on
the attached Rent
Schedule for the Premises (i.e. the combined Original
Premises (less Suite 130), Expansion Premises and Suite 110
Premises).
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, as shown on the attached Rent
Schedule, 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.
3. Additional
Rent.
a.
Tenant’s
proportionate share of Operating Expenses for the Suite 110
Premises commencing on the Swap Date through the EPCD shall be
12.72%.
b.
Commencing on the
EPCD, Tenant’s proportionate share of Operating Expenses
shall be 71.31% for the Premises (i.e. the combined Original
Premises (less Suite 130), Expansion Premises and Suite 110
Premises). The Operating Expenses for the Premises for 2021 are
estimated to be approximately $5.43 per square foot.
4. 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.
5. Tenant
Improvements. Landlord and Tenant desire to add the Suite
110 Premises to the Work Letter and, accordingly, the work letter
attached to the Eighth Amendment is hereby deleted and replaced
with the Work Letter attached hereto as Exhibit C
(the “Work
Letter”). Other than with respect to Landlord’s
Work, Tenant accepts the Suite 110 Premises in its
“as-is” condition and Landlord shall have no obligation
to perform any work at the Suite 110 Premises.
6. Parking.
Commencing on the Swap Date, Tenant shall be entitled to additional
parking spaces for the Suite 110 Premises in accordance with the
ratio (5 parking spaces per 1,000 square feet) set forth in Section
16.9 of the Lease.
7. Renewal
Option. The renewal option in Section 10 of the Eight
Amendment applies to the Premises (i.e. the combined Original
Premises (less Suite 130, Expansion Premises and Suite 110
Premises).
8. Brokers.
Landlord and Tenant each represent and warrant to the other that
they have not worked with any broker in connection with this
Amendment that is entitled to a fee, commission or other
compensation in connection with this Amendment. 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.
9. 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.
10. 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.
[Remainder
of Page Intentionally Left Blank; Signature Page
Follows.]
IN WITNESS WHEREOF, the undersigned have executed this Ninth
Amendment to Lease as of the day and year first above
written.
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LANDLORD: |
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CHALLENGER-DISCOVERY, LLC, |
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a Delaware limited liability company |
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By:
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/s/ Xxxxxx X.
Xxxxxxxx
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Name: | Xxxxxx
X. Xxxxxxxx |
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Title: | CEO/CFO/Manager |
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TENANT:
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LIGHTPATH TECHNOLOGIES,
INC.,
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a Delaware
corporation
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By:
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/s/ Xxxxx
Xxxxx
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Name:
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Xxxxx Xxxxx |
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Title:
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Vice President of Operations |
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Exhibit A
Suite 110/130 Premises
[SEE ATTACHED]
Exhibit B
Premises
[SEE ATTACHED]
Exhibit C
Work Letter
1. This Work Letter
shall set forth the obligations of Landlord and Tenant with respect
to the preparation of the Suite 110 Premises, the Expansion
Premises and the 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. There shall not be any increase in the
Construction Allowance in connection with the Suite 110 Premises;
however, the Construction Allowance shall be applicable to the
Suite 110 Premises (in addition to the Expansion Premises and the
Original Premises). Notwithstanding the calculation of the
Construction Allowance, the Construction Allowance shall be
available for the entire Premises and not separately allocated to
the Suite 110 Premises, the Expansion Premises or the 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 shall 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 Xxxxxx 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 does not currently include the Suite 110 Premises) 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 Landlord, 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 Xxxxx Xxxxx
(xxxxxx@xxxxxxxxx.xxx) 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 and Suite
110 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 and Suite 110 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
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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.
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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.
RENT SCHEDULE
[SEE
ATTACHED]
Rent Schedule for LightPath Lease – Amendment
Nine
CT3 – LIGHTPATH
Version 3: 8/31/2021
Premises:
58,531 (21,757 +
26,337 + 10,437)
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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-Month2**
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$-
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$-
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$-
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Months
3-12
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$15.25
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$892,597.75
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$74,383.15
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Months
13-24
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$15.71
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$919,522.01
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$76,626.83
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Months
25-36
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$16.18
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$947,031.58
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$78,919.30
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Months
37-48
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$16.67
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$975,711.77
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$81,309.31
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Months
49-60
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$17.17
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$1,004,977.27
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$83,748.11
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Months
61-72
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$17.69
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$1,035,413.39
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$86,284.45
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Months
73-84
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$18.22
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$1,066,434.82
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$88,869.57
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Months
85-96
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$18.77
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$1,098,626.87
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$91,552.24
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Months
97-108
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$19.33
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$1,131,404.23
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$94,283.69
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Months
109-120
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$19.91
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$1,165,352.21
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$97,112.68
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Months
121-127
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$20.51
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$1,200,470.81
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$100,039.23
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