Exhibit 10.26.2
SECOND LEASE MODIFICATION AGREEMENT
LEASE MODIFICATION AGREEMENT dated as of the 5th day of April 2000
between 224 West 30 LLC, having an office in care of C & K Properties, Pier
40, West Houston & West Streets, New York, New York 10014 (hereinafter
referred to a "Owner") and Medscape, Inc., a Delaware corporation, having an
office at 224 West 30th Street, New York, New York 10001 (hereinafter
referred to as "Tenant")
WITNESSETH:
WHEREAS, Owner and Tenant entered into that certain loft lease agreement
dated as of February 8, 2000, covering certain commercial loft space more
particularly described in said Loft Lease agreement (the "Demised Premises")
in the building known as 224 West 30th Street, New York, New York ("the
Building"), under the terms and conditions contained therein (hereinafter
referred to as the "Loft Lease"): and
WHEREAS, Owner and Tenant entered into that certain lease modification
agreement, dated as of April 5th, 2000, whereby the entire third (3rd) floor
of the Building was added to the Demised Premises upon the terms and
conditions contained therein (hereinafter referred to as the "Lease
Modification Agreement"); and
WHEREAS, Tenant desires to add to the Demised Premises a portion of the
seventh (7th) floor of the Building, approximately as indicated on the
location plan annexed hereto and made a part hereof, the rentable square foot
area of which Owner and Tenant acknowledge and agree shall be deemed to be
1,377 rentable square feet (the "7th Floor Additional Space); and
WHEREAS, Tenant and Owner wish to modify the Loft Lease as set forth
below;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties agree as follows:
1. ADDITION OF SPACE. A. The 7th Floor Additional Space is hereby added to
the Demised Premises effective as of March 3, 2000 (the "7th Floor Additional
Space Commencement Date") under the same terms, covenants and conditions of
the Loft Lease, except as specifically modified by this agreement and except
for Articles 48, 61, 64, and 65 of the Lease which shall no apply to this
agreement or the 7th Floor Additional Space.
B. Effective as of the 7th Floor Additional Space Commencement Date in
order to reflect the addition of the 7th Floor Additional Space to the
Demised Premises; (1) the fixed annual rent payable under the Loft Lease
(exclusive of electricity) shall be increased by the sum of:
(a) $39,933.00 per annum for the period from 7th Floor Additional Space
Commencement Date through January 31, 2001 and (b) by the sum of $41,730.00
per annum for the period from February 1, 2001 through January 31, 2002 and
(c) by the sum of $43,608.99 per annum for the period from February 1, 2002
through January 31, 2003 and (d) by the sum of $45,570.00 per annum for the
period from February 1, 2003 through January 31, 2004 and (e) by the sum of
$47,621.00 per annum for the period from February 1, 2004 through January 31,
2005; and (2) Tenant's Share, as defined in Article 53 of the Loft Lease,
shall be amended and increased by one (1%) percent to forty-two and eight
tenths (42.8%) percent; and (3) the deemed rentable square foot area of the
Demised Premises shall be amended and increased by 1,377 deemed rentable
square feet to 61,839 deemed rentable square feet for purposes of the Loft
Lease including, without limitation, Articles 53 and 62 thereof; and (4) it
shall be material obligation of Tenant under this agreement and the Lease
that it shall increase the security deposited with Landlord pursuant to
Article 32 of the Lease by means of cash payment in the sum of $13,311.00 to
be delivered to Owner upon execution and delivery of this agreement by
Tenant, to be held by Owner in accordance with the provisions of said Article
32 of the Lease, in order that the aggregate amount of security deposited
with Landlord shall thereafter be the sum of $460,153.00.
2. CONDITION OF 7TH FLOOR ADDITIONAL SPACE. Tenant expressly
acknowledges that it has inspected the 7th Floor Additional Space and is
fully familiar with the physical condition thereof. Tenant agrees to accept
the 7th Floor Additional Space as of the 7th Floor Additional Space
Commencement Date in its then "as is" condition. Owner shall have no
obligation to do any work in or to the 7th Floor Additional Space in order to
make them suitable and ready for occupancy and use by Tenant.
3. SUCCESSORS/ASSIGNS. This agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and permitted
assigns.
4. ENTIRE AGREEMENT.
A. This agreement represents the entire understanding between
the parties with regard to the matters addressed herein and my only be
modified by written agreement executed by all parties hereto. All prior
understandings or representations between the parties hereto, oral or
written, to the extent that they pertain to the matters addressed herein, are
hereby merged herein.
B. Tenant acknowledges that neither Owner nor any
representative or agent of Owner has made any representation or warranty,
express or implied, as the the physical condition, state of repair, layout,
footage or use of the Demised Premises or any matter or thing affecting or
relating to the Demised Premises except as specifically set forth in this
Agreement. Tenant has not been induced by and has not relied upon any
statement, representation or agreement, whether express or implied, not
specifically set forth in this agreement. Tenant shall not be liable or
bound in any manner by any oral or written statement, broker's "set-up",
representation, agreement or information pertaining to the Demised Premises
or this agreement furnished by any real estate broker, agent, servant,
employee or other person, unless specifically set forth herein, and no rights
are or shall be acquired by Tenant by implication or otherwise unless
expressly set forth herein.
5. EFFECTIVENESS. This agreement shall not be binding upon Owner
until executed and delivered by both Owner and Tenant.
6. RATIFICATION. Except as specifically modified herein, all other
terms, covenants and conditions of the Loft Lease are and shall remain in
full force and effective and are hereby ratified and confirmed.
7. NO BROKERS/INDEMNIFICATION: Tenant warrants that it has not dealt
with any broker, agent or finder in connection with the 7th Floor Additional
Space and that no broker, finder or consultant participated in procuring this
agreement other than Harry Krausman of Colliers/ABR, Inc and Sam Gavish of
SAG, Inc., each of whom acted solely as consultants to Tenant ("Tenant's
Consultants"). Tenant warrants to Owner that is shall pay any fee due to
Tenant's Consultants, in accordance with the terms of separate agreements
with each of them.
Tenant hereby indemnifies and agrees to defend and hold Owner, its agents,
servants and employees harmless from any suit, action, proceeding,
controversy, claim or demand whatsoever at law or in equity that may be
instituted against Owner by anyone who claimed to have dealt with Tenant for
recovery of compensation or damages for procuring this Agreement or by reason
of a breach or purported breach of the representations and warranties
contained herein.
8. MISCELLANEOUS.
A. The captions in this agreement are for convenience only are not
to be considered in construing this agreement.
B. This agreement shall be construed without regard to any
presumption or other rule requiring construction against the party causing
this agreement to be drafted.
C. Terms used in this agreement and not otherwise defined herein
shall have the respective meanings ascribed thereto in the Loft Lease.
D. If any provision of this agreement or its application to any
person or circumstances is invalid or unenforceable to any extent, the
remainder of this agreement, or the applicability of such provision to other
persons or circumstances, shall be valid and enforceable to the fullest
extent permitted by law and shall be deemed to be separate from such invalid
or unenforceable provisions and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the
date first set forth above.
224 WEST 30 LLC MEDSCAPE, INC.
By: /s/ Ben Korman By: /s/ Peter Frishauf
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Ben Korman Managing Partner
(Name) (Title) Peter Frishauf - Chairman and Founder
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