Untitled Document


Exhibit
  10.1

 

SECOND
  AMENDMENT TO STANDARD INDUSTRIAL/COMMERCIAL MULTI-LESSEE LEASE-NET

 

  THIS SECOND AMENDMENT TO STANDARD INDUSTRIAL/COMMERCIAL MULTI-LESSEE LEASE-NET
  (this "Amendment") is made and entered into as of the 23rd
  day of August 2010 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 (the "First 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 39700 Eureka Drive, Newark, California, 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
  Bill 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.

B. Lessor 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 six (6) years through and including
  June 30, 2018 ("Extended Term").

 2. Base Rent. Except
  as specified in Paragraph 3 of this Amendment, Base Rent and Lessee's Share
  of Common Area Operating Expenses due under the Lease through June 30, 2012
  shall be as set forth in the Original Lease. Commencing July 1, 2012, 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, 2012 through and including June 30, 2013, Lessee shall pay to Lessor
  Base Rent in equal monthly installments of Twenty-nine thousand seven hundred
  four and 80/100 Dollars ($29,704.80) each, plus Lessee's Share of Common Area
  Operating Expenses.

(b) During the period commencing July 1, 2013 through and including June 30,
  2014, Lessee shall pay to Lessor Base Rent in equal monthly installments of
  Thirty Thousand Eight Hundred Ninety Two and 99/100 Dollars ($30,892.99) each,
  plus Lessee's Share of Common Area Operating Expenses.

   



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  (c) During the period commencing July 1, 2014 through and including June
    30, 2015, Lessee shall pay to Lessor Base Rent in equal monthly installments
    of Thirty Two Thousand One Hundred Twenty Eight and 71/100 Dollars ($32,128.71)
    each, plus Lessee's Share of Common Area Operating Expenses.

  (d) During the period commencing July 1, 2015 through and including June
    30, 2016, Lessee shall pay to Lessor Base Rent in equal monthly installments
    of Thirty Three Thousand Four Hundred Thirteen and 86/100 Dollars ($33,413.86)
    each, plus Lessee's Share of Common Area Operating Expenses.

  (e) During the period commencing July 1, 2016 through and including June
    30, 2017, Lessee shall pay to Lessor Base Rent in equal monthly installments
    of Thirty Four Thousand Seven Hundred Fifty and 41/100 Dollars ($34,750.41)
    each, plus Lessee's Share of Common Area Operating Expenses.

  (f) During the period commencing July 1, 2017 through and including June
    30, 2018, Lessee shall pay to Lessor Base Rent in equal monthly installments
    of Thirty Six Thousand One Hundred Forty and 43/100 Dollars ($36,140.43) each,
    plus Lessee's Share of Common Area Operating Expenses.



3. Base Rent Abatement. Provided that so long as Lessee is not
  in default under the terms of the Lease, as amended hereby, Lessee's Base Rent
  shall be abated in the amount of Thirty One Thousand Nine Hundred Eighty Two
  and 51/100 Dollars ($31,982.51) for the months of September 2010 through and
  including December 2010 and One Thousand Two Hundred Seventy Eight and 28/100
  Dollars ($1,278.28) for the months of January 2011 through and including June
  2012 ("Base Rent Abatement"). The Base Rent Abatement shall
  be deemed conditioned upon Lessee's full and faithful performance of all of
  the terms, covenants and conditions of the Lease. Upon Breach of the Lease by
  Lessee, the Base Rent Abatement shall automatically be deemed deleted from the
  Lease and of no further force or effect, and the Base Rent Abatement, or part
  thereof which has actually been provided to Lessee as of the occurrence of the
  Breach (whichever is less) shall be immediately due and payable by Lessee to
  Lessor, notwithstanding any subsequent cure of said Breach by Lessee. The acceptance
  by Lessor of rent or the cure of the Breach which initiated the operation of
  this paragraph shall not be deemed a waiver by Lessor of the provisions of this
  paragraph unless specifically so stated in writing by Lessor at the time of
  such acceptance.

4. Option
  to Renew Original Term. Paragraph 4 of the Addendum to the Original
  Lease is hereby deleted in its entirety. 

5. Common Area Operating Expenses. Effective January
  1, 2012, Paragraph 4.2 (a) (xi) of the Original Lease shall be deleted in its
  entirety and replace with the following: Any other costs or expenses applicable
  to the ownership, leasing and/or management of the Building and/or Project including,
  without limitation, management fees, Lessee's Share of which shall not exceed
  4% of Rent.

 


   



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6. 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 6 shall survive the expiration or
  early termination of the Lease.

7. 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,
  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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  8. 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.

9. 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.

 

SIGNATURES ON FOLLOWING PAGE

 



  

  



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	 	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:       Cohen
      Asset Management, Inc.
	 	            a
      California corporation
	 	Its:       Manager
	 	 
	 	By:         /s/ Bradley S. Cohen  
	 	            Bradley
      S. Cohen
	 	Its:       President
	 	 
	 	LESSEE:
	 	 
	 	SOCKET MOBILE, INC.
	 	a Delaware corporation
	 	 
	 	By:         /s/ Kevin Mills  
	 	 
	 	Its:       President
      & CEO


 

 

 

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