SECOND AMENDMENT TO LEASE (The Campus)
Exhibit 10.5
SECOND AMENDMENT TO LEASE
(The Campus)
THIS SECOND AMENDMENT TO LEASE ("Second Amendment") is made and entered into as of the I& day of February, 2006, by and between COGNAC CAMPUS LLC, a Delaware limited liability company ("Landlord") and NTN BUZZTIME, INC., a Delaware corporation ("Tenant").
RECITALS:
▇. ▇▇▇▇▇▇▇▇ Properties Acquisition Partners, L.P., a Delaware limited partnership ("Original Landlord") and NTN Communications, Inc., a Delaware corporation ("Original Tenant"), entered into that certain Standard Multi-Occupancy Lease dated as of July 17, 2000 (the "Original Lease"), as amended by that certain First Amendment to Lease dated October 4, 2005 by and between Original Landlord and Original Tenant ("First Amendment"), whereby Original Landlord leased to Original Tenant and Original Tenant leased from Original Landlord certain space located in that certain building located and addressed at ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Building"). The Original Lease, as amended by the First Amendment, may be referred to herein as the "Lease." Landlord is the successor-in-interest in the Lease to Original Landlord. Tenant is the successor-in-interest in the Lease to Original Tenant by way of name change.
B. By this Second Amendment, Landlord and Tenant desire to (i) expand the Existing Premises (as defined below), (ii) extend the Term of the Lease, and (iii) otherwise modify the Lease as provided herein.
C. Unless otherwise defined herein, capitalized terms as used herein shall have the same meanings as given thereto in the Lease.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT:
1. The Existing Premises. Landlord and Tenant hereby agree that pursuant to the Lease, Landlord currently leases to Tenant and Tenant currently leases from Landlord that certain space in the Building containing 39,397 rentable square feet of space ("Existing Premises"), as more particularly described in the Lease.
2. The Expansion Space; Term.
2.1. The Expansion Space. That certain space in the Building containing 2,122 rentable (2,034 usable) square feet of space, as outlined on the floor plan attached hereto as Exhibit "A" and made a part hereof, may be referred to herein as the "Expansion Space." From and after April 1, 2006 ("Expansion Space Commencement Date"), Tenant shall lease from Landlord and Landlord shall lease to Tenant the Expansion Space. Accordingly, effective upon the Expansion Space Commencement Date, the Existing Premises shall be increased to include the Expansion Space. Landlord and Tenant hereby agree that such addition of the Expansion Space to the Existing Premises shall, effective as of the Expansion Space Commencement Date, increase the number of rentable square feet leased by Tenant in the Building to a total of 41,519 rentable square feet. Effective as of the Expansion Space Commencement Date, all references in the Lease to the "Premises" shall mean and refer to the Existing Premises and the Expansion Space.
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2.2. Term. The term of Tenant's lease of the Expansion Space ("Expansion Space Term") shall be for a period of sixty-three (63) months, commencing on the Expansion Space Commencement Date and ending, unless sooner terminated as provided in the Lease, on June 30, 2011 ("Expansion Space Termination Date").
3. Monthly Base Rent for the Expansion Space. Commencing as of the Expansion Space Commencement Date and continuing until the Expansion Space Termination Date, Tenant shall pay, in accordance with the provisions of this Section 3, monthly Base Rent for the Expansion Space and in addition to all other charges and additional rent payable by Tenant for the Premises (including the Existing Premises and the Expansion Space) as follows:
Monthly Base Rent
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Months of
Expansion Space Term
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Monthly Base Rent
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Monthly Base Rent
per rentable square
feet of Expansion Space
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4/1/06 — 06/30/07
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$1,697.60
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$0.80
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7/1/07 — 06/30/08
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$1,740.04
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$0.82
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7/1/08 — 06/30/09
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$1,803.70
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$0.85
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7/1/09 — 06/30/10
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$1,846.14
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$0.87
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7/1/10 — 06/30/11
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$1,909.80
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$0.90
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4. Tenant's Proportionate Share. Commencing as of the Expansion Space Commencement Date and continuing until the Expansion Space Termination Date, Tenant's Proportionate Share shall be 65.86%; provided, however, that in determining Tenant's Proportionate Share of Operating Expenses, Landlord shall have the right, from time to time, to equitably allocate some or all of the Operating Expenses between the Building and/or among different tenants of the Project and/or different buildings of the Project (the "Cost Pools"). Such Cost Pools may include, without limitation, the office space tenants and industrial space tenants of the Project or of a building or buildings in the Project. As of the date hereof, Tenant acknowledges and agrees that such Cost Pools include an allocation by Landlord of (i) certain Operating Expenses attributable solely to the buildings located at 5964 and ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ to the tenants of those buildings, and (ii) certain Operating Expenses attributable to the Project as a whole to all tenants of the Project. Such Cost Pools may also include an allocation of certain Operating Expenses within or under covenants, conditions and restrictions affecting the Project. In addition, Landlord shall have the right from time to time, in its reasonable discretion, to include or exclude existing or future buildings in the Project for purposes of determining Operating Expenses and/or the provision of various services and amenities thereto, including allocation of Operating Expenses in any such Cost Pools.
5. Condition of Premises and Landlord's Work.
5.1. Condition of Premises. Tenant hereby agrees to accept the Premises (including the Existing Premises and the Expansion Space) in its "as-is" condition and Tenant hereby acknowledges that Landlord, except as otherwise provided below, shall not be obligated to provide or pay for any improvement work or services related to the improvement of the Premises. Tenant also acknowledges that Landlord has made no representation or warranty regarding the condition of the Premises.
5.2. Landlord's Work in Expansion Space. Prior to the Expansion Space Commencement Date, Landlord shall, at Landlord's sole cost and expense, using Building-standard materials and in Landlord's Building-standard manner, construct those certain improvements in the Expansion Space as described on the scope of work and work plan attached hereto as Exhibit "B" (collectively, "Landlord's Work").
6. Use of Expansion Space. Notwithstanding anything in the Lease to the contrary, the Expansion Space may only be utilized by Tenant for warehouse purposes (and for no other purpose whatsoever), all to the extent in compliance with all applicable laws and consistent with the character of the Project as a first-class project.
7. Brokers. Except for Brandywine Operating Partnership, L.P. ("Landlord's Broker"), each party represents and warrants to the other that no broker, agent or finder negotiated or was instrumental in negotiating or consummating this Second Amendment. Each party further agrees to defend, indemnify and hold harmless the other party from and against any claim for commission or finder's fee by any entity (other than Landlord's Broker) who claims or alleges that they were retained or engaged by the first party or at the request of such party in connection with this Second Amendment.
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8. Security Deposit. Tenant has previously deposited with Landlord Forty-Five Thousand One Hundred Sixty-Seven and 14/100 Dollars ($45,167.14) as a Security Deposit under the Lease. On or before the Expansion Space Commencement Date, Tenant shall deposit with Landlord an additional One Thousand Nine Hundred Nine and 80/100 Dollars ($1,909.80), for a total Security Deposit under the Lease, as amended herein, of Forty-Seven Thousand Seventy-Six and 94/100 Dollars ($47,076.94). Landlord shall continue to hold the Security Deposit (as increased herein) in accordance with the terms and conditions of Section Q-12 of the Lease.
9. Notices to Landlord. Effective as of the date of this Second Amendment, any notices to Landlord must be sent, delivered or transmitted, as the case may be, as follows:
Notices for Rent:
Cognac Campus LLC
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
All other notices:
Cognac Campus LLC
c/o Prudential Real Estate Investors
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
with a copy to:
Cognac Campus LLC
c/o Prudential Real Estate Investors
▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Legal Department
and
Brandywine Operating Partnership, LP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President
10. Authority. Each individual executing this Second Amendment on behalf of Tenant represents and warrants that Tenant is a duly formed and existing entity qualified to do business in California and that Tenant has full right and authority to deliver this Second Amendment and that each person signing on behalf of Tenant is authorized to do so.
11. ERISA. To induce Landlord to enter into this Second Amendment, and in order to enable The Prudential Insurance Company of America ("Prudential") to satisfy its compliance with the Employee Retirement Income Security Act of 1974, as amended, Tenant represents and warrants to Landlord and Prudential that: (i) neither Tenant nor any of its affiliates (within the meaning of Part V(c) of Prohibited Transaction Exemption 84-14 granted by the U.S. Department of Labor ("PTE 84-14")) has, or during the immediately preceding year has exercised, the authority to appoint or terminate Prudential as investment manager of any assets of the employee benefit plan whose assets are held by Prudential or to negotiate the terms of any management agreement with Prudential on behalf of any such plan; (ii) the transaction evidenced by the Lease (as modified by this Second Amendment) is not specifically excluded by Part I(b) of PTE 84-14; (iii) the undersigned is not a related party of Prudential (as defined in V(h) of PTE 84-14, and (iv) the terms of the Lease (as modified by this Second Amendment) have been negotiated and determined at arm's length, as such terms would be negotiated and determined by unrelated parties.
12. No Further Modification. Except as set forth in this Second Amendment, all of the terms and provisions of the Lease shall remain unmodified and in full force and effect.
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IN WITNESS WHEREOF, this Second Amendment has been executed as of the day and year first above written.
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"LANDLORD"
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COGNAC CAMPUS LLC,
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a Delaware limited liability company
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By: The Prudential Insurance Company of America, a New Jersey corporation, its sole member
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇, Vice President
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"TENANT"
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NTN BUZZTIME, INC.,
a Delaware corporation
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By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: CFO
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By:
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Print Name:
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Title:
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▇▇▇▇▇▇▇ "▇"
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