FIRST AMENDMENT OF LEASE
Exhibit 10.3.1
FIRST AMENDMENT OF LEASE
THIS FIRST AMENDMENT OF LEASE, dated as of the 22nd day of February 2010 (this
“Agreement”), made by and between THE XXXXXX, CHURCH-WARDENS AND VESTRYMEN OF TRINITY
CHURCH IN THE CITY OF NEW YORK, a religious corporation, having its office at 00 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Landlord”), and WATERFRONT MEDIA INC., a Delaware
corporation, having an address at 00 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (“Tenant”).
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a lease dated as of August 26, 2009 (the
“Lease”), for certain premises on the 16th floor (the “Original
Premises”) of the building known as 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the
“Building”) for a term expiring on October 31, 2018; and
WHEREAS, Landlord and Tenant desire to amend the Lease to add certain additional premises to
the “Premises” (as such term is defined in the Lease); and otherwise amend the provisions
of the Lease, all on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and conditions
hereinafter set forth, the parties agree as follows:
1. Defined Terms. All capitalized terms used in this Agreement which are not otherwise
defined herein shall have the meanings ascribed to them in the Lease.
2. Additional Premises.
(a) A portion of the sixteenth (16th) floor of the Building, substantially as shown
hatched on the plan annexed hereto as Schedule A (the “Additional Premises”), is
hereby added to and shall be considered a part of the Premises demised under the Lease, commencing
on the date on which Landlord shall tender delivery of the Additional Premises to Tenant in vacant
and broom-clean condition (the “Additional Premises Commencement Date”). The lease of the
Additional Premises shall expire on October 31, 2018.
(b) Tenant shall lease the Additional Premises in its “as is” condition as of the date of this
Agreement, reasonable wear and between the date hereof and the Additional Premises Commencement
Date excepted, it being understood that Landlord shall not be obligated to perform any work to
prepare the Additional Premises liar Tenant’s occupancy. Article 38 of the Lease and references to
Landlord’s Work shall be inapplicable to the Additional Premises. Notwithstanding the foregoing,
promptly after the Additional Premises Commencement Date (and without affecting the occurrence of
such date), Landlord shall xxxxx any asbestos-containing materials in the Additional Premises and
shall deliver to Tenant a Form ACP-5 certificate for the Premises. Tenant shall afford Landlord
access to the Additional
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Premises to perform such work. The foregoing shall not be deemed to modify the last sentence
of Section 9.6 of the Lease with respect to the Original Premises.
3. Additional Premises Improvement Allowance. In consideration of Tenant’s acceptance
of the Additional Premises in its “as is” condition, Tenant shall be entitled to an allowance of up
to, but not in excess of, $243,135 (the “Additional Premises Improvement Allowance”), which
shall be disbursed to Tenant in accordance with the terms and conditions of Section 6.5 of the
Lease, provided that all references therein to (i) the “Premises” shall be deemed to refer to the
“Additional Premises” and (ii) the “Tenant Improvement Allowance” shall be deemed to refer to the
“Additional Premises Improvement Allowance”. Notwithstanding the provisions of Section 6.5(C) of
the Lease, if Tenant has not submitted a request for payment of the Additional Premises Improvement
Allowance within 24 months of the Additional Premises Commencement Date (with time being of the
essence), Tenant shall not be entitled to any payment or credit for such unused amounts.
4. Fixed Rent and Percentage Escalation. (a) From and after the Additional Premises
Commencement Date, Tenant shall pay Fixed Rent and the Operating Expense Payment for the Additional
Premises in accordance with Schedule B annexed to this Agreement.
(b) Provided that no Event of Default has occurred and is continuing under the Lease (as
amended by this Agreement), Tenant shall be entitled to a credit against Fixed Rent payable for the
Additional Premises for the first four months of the Term of the Lease for the Additional Premises,
and for the month of August 2011, each such monthly credit equal to $14,633.13 per month.
5. Tax Escalation Rent. From and after January 1, 2011, Tenant shall pay Tenant’s
Share of any increases in Taxes attributable to the Additional Premises in accordance with
Article 3 of the Lease, except that for the purposes of determining Tenant’s Tax Payment
applicable to the Additional Premises:
(a) The term “Base Tax Factor” with respect to the Additional Premises shall mean the
Taxes payable for the calendar year 2010; and
(b) The term “Tenant’s Share” with respect to the Additional Premises shall mean .58%.
6. Electric Current. From and after the Additional Premises Commencement Date, Tenant
shall pay for electric current supplied to the Additional Premises pursuant to the provisions of
Article 4 of the Lease. To the extent a submeter does not exist and is required to measure Tenant’s
consumption of electricity in the Additional Premises, Landlord shall install such submeter at its
expense. To the extent that Tenant exercise its Expansion Option under the Lease or otherwise
leases the balance of the 16th floor of the Building. Landlord, at its expense, shall
install a submeter to measure the electricity required to operate the Building HVAC System
exclusively serving the 16th floor and Tenant shall pay for such electricity in accordance with
Article 4 of the Lease.
7. Security Deposit. Simultaneously with the execution and delivery of this Agreement,
Tenant shall deposit with Landlord a Security Deposit in the amount of $117,065
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meeting the requirements of Article 35 of the Lease. Landlord shall hold and disburse such
Security Deposit in accordance with Article 35 of the Lease.
8. Broker. Landlord and Tenant each represents and warrants that it has had no
dealings or communications with any broker or agent in connection with this Agreement, other than
Xxxxxxx & Wakefield, Inc. (the “Broker”). Landlord and Tenant covenant and agree to pay,
hold harmless and indemnify the other party from and against any and all claims or other liability
for any compensation, commissions or charges claimed by any broker or agent (other than the Broker
with respect to Tenant’s indemnity to Landlord) who claims to have dealt with the indemnitor in
connection with this Agreement and for any and all costs incurred by the indemnitee in connection
with such claims, including without limitation, attorneys’ fees and disbursements. Landlord shall
pay Broker its commission pursuant to separate agreement. The provisions of this Section 8
shall survive the expiration or sooner termination of this Agreement.
9. Freight Elevator. Provided Tenant has scheduled such use with Landlord, Tenant may
use a freight elevator during Overtime Periods for Tenant’s initial move into the Additional
Premises, and Landlord will waive the first $4,000 in such freight elevator charges.
10. Ratification. Except as modified by this Agreement, all of the terms, covenants
and conditions of the Lease shall apply to the Additional Premises and shall remain in full force
and effect.
11. Signatures. This Agreement is offered for signature by Tenant and it is understood
that this Agreement shall not be binding upon Landlord or Tenant unless and until Landlord shall
have executed and delivered a fully-executed copy of this Agreement to Tenant.
12. No Oral Modification. This Agreement may not be changed or terminated orally, but
only by an agreement in writing signed by Landlord and Tenant.
13. Counterparts. This Agreement may be executed in multiple counterparts, all of
which, taken together, shall constitute one original instrument.
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3.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year first above
written.
| LANDLORD: THE XXXXXX, CHURCH-WARDENS AND VESTRYMEN OF TRINITY CHURCH IN THE CITY OF NEW YORK |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Xxxxx Xxxxx | ||||
| Director of Commercial Real Estate Leasing | ||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Xxxx Xxxxxxxx | ||||
| Executive Vice President | ||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Xxxxx Xxxxxxx | ||||
| Chief Financial Officer | ||||
| TENANT: WATERFRONT MEDIA INC. |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Executive Vice President and General Counsel | |||
4.
SCHEDULE A
Additional Premises
SCHEDULE B
FIXED RENT AND OPERATING EXPENSE PAYMENT
| Lease Year | Fixed Rent | Operating Escalation | Escalated Rent | |||
| 1 | $175,598 | — | $175,987 | |||
| 2 | $175,598 | $4,390 | $179,988 | |||
| 3 | $175,598 | $8,890 | $184,488 | |||
| 4 | $179,650 | $13,502 | $193,152 | |||
| 5 | $191,807 | $18,331 | $210,138 | |||
| 6 | $195,859 | $23,584 | $219,443 | |||
| 7 | $208,016 | $29,070 | $237,086 | |||
| 8 | $208,016 | $34,997 | $243,013 | |||
| 9 | $208,016 | $41,073 | $249,089 |
The first Lease Year commences on the Additional Premises Commencement Date and ends January
31, 2011.
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