Second Amendment to Lease, dated November 11, 2019, between Applied Optoelectronics, Inc. and ROIB2 Breckinridge, LLC

Exhibit 10.1

SECOND AMENDMENT TO LEASE

THIS SECOND AMENDMENT TO LEASE (“Amendment”) is made and entered into as of November 11, 2019 (the “Amendment Date”), by and between ROIB2 BRECKINRIDGE, LLC, a Delaware limited liability company (“Lessor”) and APPLIED OPTOELECTRONICS, INC., a Delaware corporation (“Lessee”).

WHEREAS, Lessor and Lessee are parties to that certain Lease dated November 5, 2015, as amended by that certain First Amendment to Lease dated as of October 8, 2018 (collectively, the “Lease”) whereby Lessor has leased to Lessee certain premises known as Suite 130, consisting of approximately 2,983 rentable square feet (the “Existing Premises”) located within the commercial project known as “Breckinridge Exchange” (the “Existing Project”) in the office building located at 3025 Breckinridge Blvd., Duluth, GA (the “Existing Building”), as set forth more fully in the Lease;

WHEREAS, Lessor and Lessee have agreed to extend the Term, to relocate the Premises to that certain space known as Suite 112 consisting of approximately 6,253 rentable square feet, as depicted on the floor plan set forth in Schedule 1 to this Amendment (the “Relocation Premises”) within the commercial office project known as “Breckinridge Center”, described more fully in Schedule 2 to this Amendment (the “Relocation Project”), in the office building located at 3305 Breckinridge Blvd., Duluth, GA (the “Relocation Building”), and to implement such other revisions as are set forth more fully below.

NOW, THEREFORE, for and in consideration of the herewith provided conditions, the parties agree as follows:

a.                   Plans and Permits. Promptly following the Amendment Date, Lessee shall submit to Lessor Lessee’s plans and specifications (“Lessee’s Plans”) for the construction and installation of the fixtures and leasehold improvements Lessee desires to make in connection with Lessee’s use and occupancy of the Premises (collectively, “Lessee’s Work”). Lessee shall also give Lessor written notice of the identity of the contractor Lessee intends to retain to perform the Lessee’s Work. Lessor shall have the right to approve the contractor selected by Lessee and any subsequent substitution of said contractor, such approval not to be unreasonably withheld. Lessee’s Plans shall be prepared by an architect licensed to practice in the state where the Project is located and shall be approved by Lessor in writing prior to the performance of any Lessee’s Work. Lessee shall, at its sole cost and expense, be responsible for obtaining all final unappealable permits, licenses, certificates and approvals (including without limitation, all building permits and permits for signage) required for Lessee’s Work and for the operation of the Premises as provided in the Lease (collectively, the “Lessee Permits”). Lessee shall apply for and diligently pursue obtaining all Lessee Permits within ten (10) days after Lessor has approved Lessee’s Plans.

b.                   Performance. Lessee shall, at Lessee’s sole cost and expense, commence construction of Lessee’s Work and shall diligently pursue Lessee’s Work to completion. All construction work by Lessee’s contractors and/or subcontractors must be coordinated with Lessor in a manner reasonably approved by Lessor such that it will not cause any interference with Lessor’s operation of, or with the use by other lessees or occupants of, the Project. Lessee shall install Lessee’s Work in a good and workmanlike manner and in compliance with all applicable laws, codes, ordinances and regulations. As used herein, the term “Substantially Complete” shall mean the date on which Lessee has completed Lessee’s Work in accordance with Lessee’s Plans, subject to minor “punch-list” items which do not materially prevent Lessee from the use and occupancy of the Premises, and Lessee has obtained a temporary or permanent certificate of occupancy for the Premises.

c.                    Lessee’s Allowance. Provided no Event of Default has occurred and is continuing, Lessor shall reimburse Lessee for Lessee’s construction of Lessee’s Work, in the amount equal to the lesser of (i) $6.00 per rentable square foot of the Premises, or (ii) the actual cost incurred by Lessee to complete Lessee’s Work (the lesser amount being referred to herein as “Lessee’s Allowance”). Provided Lessee has complied with the obligations set forth in this paragraph and no Event of Default has occurred and is continuing at the time any such installment is due, Lessee’s Allowance shall be paid to Lessee within thirty (30) days after Lessee has (i) provided Lessor copies of paid invoices documenting the actual cost incurred by Lessee to complete Lessee’s Work (excluding trade fixtures, equipment and inventory) within the Premises, (ii) delivered to Lessor a final lien waiver with respect to the Premises from any general contractor, subcontractors, or materialmen who have performed work on, or furnished materials to, the Premises as part of Lessee’s Work, and (iii) delivered to Lessor a copy of a valid certificate of occupancy for the Premises, issued by the applicable governmental authorities, allowing Lessee to commence operations within the Premises. Lessee must complete the items in subsections (i) through (iii) on or before the date that is nine (9) months following the Amendment Date, and if Lessee fails to do so, Lessor shall have no further obligation to pay Lessee’s Allowance under this paragraph. Notwithstanding anything to the contrary contained herein, Lessor reserves the right to offset against Lessee’s Allowance (i) any delinquent amounts which have accrued and are owing by Lessee hereunder; (ii) all costs and/or expenses incurred by Lessor to repair any damage to the Project caused by Lessee or Lessee’s contractor during the performance of Lessee’s Work; or (iii) a credit against the rentals accruing hereunder. In the event the Lease shall be terminated for any reason prior to the natural expiration of the Term of the Lease, Lessee shall pay to Lessor the unamortized portion of Lessee’s Allowance, said amortization to be computed based upon a term equal to the remaining Term of this Lease following the Relocation Effective Date, and an annual interest rate of eight percent (8%).

d.                   Early Access. Beginning on the Amendment Date, Lessee shall be entitled to enter the Premises for purpose of performing Lessee’s Work, provided that (i) Lessee shall not in any way disturb or interfere with the use and operation of the Project by Lessor and/or all other lessees and occupants of the Project, and (ii) Lessee shall comply with all provisions of the Lease during any use or occupancy of the Premises before the Relocation Effective Date, provided that Lessee shall have no obligation to pay rent for the Relocation Premises during this period.

*Notwithstanding any provision herein to the contrary, provided that no Event of Default has occurred under the Lease, Base Rent payable for the first one (1) full calendar month following the Relocation Effective Date shall be abated (the “Rent Abatement”). Lessee shall remain liable for all other amounts due under the Lease. In the event an Event of Default shall occur following the Amendment Date, Lessee shall forfeit all remaining Rent Abatement, without further action by Lessor.

[Signature page to follow.]

IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the date first written above.

LESSOR:

ROIB2 BRECKINRIDGe, LLC,

a Delaware limited liability company

By:                                                                 

Name:                                                            

Its:                                                                 

LESSEE:

APPLIED OPTOELECTRONICS, INC.,

a Delaware corporation

By:                                                                 

Name:                                                            

Its:                                                                 

Schedule 1

Floor Plan of Relocation Premises

Schedule 2

Legal Description of Project

TRACT 1:

--AND--

TRACT 2: