THIRD AMENDMENT TO STANDARD INDUSTRIAL/COMMERCIAL
Exhibit 10.1
THIRD AMENDMENT TO STANDARD INDUSTRIAL/COMMERCIAL
MULTI-LESSEE LEASE-NET
THIS THIRD AMENDMENT TO STANDARD INDUSTRIAL/COMMERCIAL MULTI-LESSEE LEASE-NET (this “Amendment”) is made and entered into as of the 28th day of December 2012 by and between NEWARK EUREKA INDUSTRIAL CAPITAL LLC, a Delaware limited liability company (“Lessor”) and SOCKET MOBILE, INC., a Delaware corporation, formerly known as Socket Communications, Inc., a Delaware corporation (“Lessee”), with reference to the following facts:
A. Lessor and Lessee are parties to that certain Standard Industrial/Commercial Multi-Lessee Lease-Net dated October 24, 2006 as modified by that certain First Amendment to Standard Industrial/Commercial Multi-Lessee Lease-Net dated March 22, 2007, and further modified by that certain Second Amendment to Standard Industrial/Commercial Multi-Lessee Lease-Net dated August 23, 2010 (the “Second Amendment”) (collectively the “Original Lease”, and as amended by this Amendment, the “Lease”) with reference to the lease of that certain real property located at 00000 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx, and more particularly described on Exhibit A to the Original Lease (the “Premises”). Lessor is the successor-in-interest to 365 Warehouse, LLC, a Delaware limited liability company (“Original Lessor”) pursuant to that certain Xxxx of Sale, Assignment and Assumption dated September 17, 2007 whereby Original Lessor assigned all of its interest in and to the Original Lease to Lessor.
X. Xxxxxx and Lessee now desire to modify and amend the Lease to, among other things, extend the Lease Term and to provide for the rental for such extended Term, all on the terms and conditions set forth in this Amendment.
C. Defined terms in this Amendment shall have the meaning ascribed to such terms in the Lease unless otherwise expressly defined in this Amendment. Where the terms of this Amendment and the terms of the Lease conflict, the terms of this Amendment shall in all instances prevail.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, Lessor and Lessee hereby agree as follows:
| 1. | Lease Term. The Lease Term is hereby extended for a period of four (4) years through and including June 30, 2022 (“Extended Term”). |
| 2. | Base Rent. Base Rent and Lessee’s Share of Common Area Operating Expenses due under the Lease through June 30, 2018 shall be as set forth in the Second Amendment. Commencing July 1, 2018, Lessee shall pay to Lessor Base Rent in advance, on or before the first day of each and every calendar month during the Extended Term of the Lease as follows: |
| (a) | During the period commencing July 1, 2018 through and including June 30, 2019, Lessee shall pay to Lessor Base Rent in equal monthly installments of Thirty Seven Thousand Five Hundred Eighty Six and 05/100 Dollars ($37,586.05) each, plus Lessee’s Share of Common Area Operating Expenses. |
| (b) | During the period commencing July 1, 2019 through and including June 30, 2020, Lessee shall pay to Lessor Base Rent in equal monthly installments of Thirty Nine Thousand Eighty Nine and 49/100 Dollars ($39,089.49) each, plus Lessee’s Share of Common Area Operating Expenses. |
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| (c) | During the period commencing July 1, 2020 through and including June 30, 2021, Lessee shall pay to Lessor Base Rent in equal monthly installments of Forty Thousand Six Hundred Fifty Three and 07/100 Dollars ($40,653.07) each, plus Lessee’s Share of Common Area Operating Expenses. |
| (d) | During the period commencing July 1, 2021 through and including June 30, 2022, Lessee shall pay to Lessor Base Rent in equal monthly installments of Forty Two Thousand Two Hundred Seventy Nine and 19/100 Dollars ($42,279.19) each, plus Lessee’s Share of Common Area Operating Expenses. |
| 3. | Brokers. Lessor and Lessee each represent and warrant to the other that no broker or finder was instrumental in arranging or bringing about this transaction and there are no claims or rights for brokerage commissions or finder’s fees in connection with the same. If any person brings a claim for a commission or finder’s fee based upon any contact, dealings or communication with Lessor or Lessee relating to this transaction, then the party through whom such person makes his claim shall defend the other party (the “Indemnified Party”) from such claim, and shall indemnify the Indemnified Party and hold the Indemnified Party harmless from any and all costs, damages, claims, liabilities or expenses (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by the Indemnified Party in defending against the claim. The provisions of this Paragraph 3 shall survive the expiration or early termination of the Lease. |
| 4. | Estoppel. As a material inducement and consideration to Lessor to execute and deliver this Amendment, Lessee represents and warrants to Lessor the truth of the following statements as of the date of this Amendment: (i) a true, complete and correct copy of the Lease is attached hereto as Exhibit “A”; (ii) the Lease as modified by this Amendment constitutes the entire agreement between Lessor and Lessee with respect to the Premises, is presently in full force and effect, and has not been further modified, changed, altered, assigned, supplemented or amended in any respect; (iii) as of the date of this Amendment, Lessee has not assigned, encumbered or hypothecated all or any portion of its interest in the Lease; (iv) the Lease is the only lease or agreement, written or oral, between Lessor and Lessee affecting or relating to the Premises; (v) no one except Lessee and its employees occupies the Premises; (vi) Lessee has no offsets, claims, or defenses to the enforcement of the Lease; (vii) no actions, whether voluntary or otherwise, are pending against Lessee under the bankruptcy laws of the United States or any state thereof; (viii) to the best of Lessee’s knowledge, after due inquiry, Lessor and Lessee are not in default under the Lease and have not committed any breach of the Lease; no event has occurred which, but for the passing of time or for the giving or receipt of notice, or both, would constitute a default under the Lease; and no notice of default has been given under the Lease; (ix) to the best of Lessee’s knowledge, the use, maintenance and operation of the Premises complies with all applicable federal, state, county or local statutes, laws, rules and regulations of any governmental authorities relating to environmental, health or safety matters (collectively, “Environmental Laws”); the Premises have not been used and Lessee will not use the Premises for any activities which, directly or indirectly, involve the use, generation, treatment, storage, transportation or disposal of any petroleum product or any toxic or hazardous chemical, material, substance, pollutant or waste; Lessee has not received any notices, written or oral, of violation of any Environmental Laws or of any allegation which, if true, would contradict anything contained in this Amendment and there are no writs, injunctions, decrees, orders or judgments outstanding, and no lawsuits, claims, proceedings or investigations pending or threatened against Lessee (with the exception of the unlawful detainer action commenced by Lessor captioned Newark Eureka Industrial Capital LLC v. Socket Mobile, Inc., Alameda County Superior Court Case No. 12658425), relating to the use, maintenance or operation of the Premises, nor is Lessee aware of a basis for any such proceeding; and (x) the Tenant Improvements are complete and were constructed in accordance with all laws, ordinances, permits, and codes applicable thereto, and all obligations of Lessor under the Lease to construct any improvements on, and to make repairs to, the Premises have been fully performed by Lessor and accepted by Lessee, and Lessee has no claims against Lessor in connection therewith. |
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| 5. | Effect on Lease. Except as hereby expressly amended, all other terms and conditions of the Lease shall remain and continue in full force and effect. Nothing herein contained alters or amends any required consent or approval required under the terms of the Lease in connection with any sublease or assignment. Submission of this Amendment by one party to another shall have no legal significance and is not an offer that may be accepted; this Amendment shall become effective only upon mutual execution and delivery hereof by all parties and contemplated signatory hereof. |
| 6. | Counterparts. This Amendment may be executed in several counterparts, each of which shall be deemed an original, all of which together shall constitute one and the same Amendment. |
IN WITNESS WHEREOF, Lessor and Lessee have executed and delivered this Amendment as of the day and year first above written.
| LESSOR: | |
| NEWARK EUREKA INDUSTRIAL CAPITAL LLC | |
| a Delaware limited liability company | |
| By: Continental Industrial Capital, LLC | |
| a Delaware limited liability company | |
| Its: Sole Member and Sole Manager | |
| By: Xxxxx Asset Management, Inc. | |
| a California corporation | |
| Its: Manager | |
| By: /s/ Xxxxxxx X. Xxxxx | |
| Xxxxxxx X. Xxxxx | |
| Its: President |
| LESSEE: | |
| SOCKET MOBILE, INC. | |
| a Delaware corporation | |
| By: /s/ Xxxxx X. Xxxxxx | |
| Xxxxx X. Xxxxxx | |
| Its: Chief Financial Officer |
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EXHIBIT “A”
LEASE
