EXHIBIT 99.5
FIRST AMENDMENT TO SUBLEASE
THIS FIRST AMENDMENT OF SUBLEASE (the "First Amendment") is dated as of
the 9th day of September, 2002, by and between CMGI, INC., a Delaware
corporation ("Sublandlord"), and ENGAGE, INC., a Delaware corporation
("Subtenant").
R E C I T A L S
WHEREAS, pursuant to that certain Lease dated April 12, 1999, by and
between Andover Xxxxx Realty Limited Partnership ("Prime Landlord") and
Sublandlord, as amended (the "Prime Lease"), a copy of which Prime Lease is
attached hereto as EXHIBIT A, Sublandlord leased from Prime Landlord certain
premises (the "Original Premises") located in the building commonly known as 000
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx (the "Building"), which Original
Premises are more fully described in the Prime Lease;
WHEREAS, pursuant to that certain Sublease dated as of November 1,
2000, by and between Sublandlord and Subtenant (the "Sublease"), a copy of which
Sublease is attached hereto as EXHIBIT B, Sublandlord presently subleases to
Subtenant 103,386 square feet of space located in the Building (the "Subleased
Premises");
WHEREAS, Sublandlord and Subtenant desire to amend the Sublease, as
described below in the provisions, covenants and conditions hereinafter set
forth; and
WHEREAS, the Prime Landlord has consented in writing to this First
Amendment and the terms hereof as evidenced by the document attached hereto as
EXHIBIT C (the "Consent").
A G R E E M E N T
NOW, THEREFORE, in consideration of Ten and 00/100 Dollars ($10.00),
the mutual covenants made herein, and other consideration, the receipt and
sufficiency of which are hereby acknowledged and agreed, and in reliance on and
in connection with the Consent, the Sublease be and hereby is amended as set
forth below; The Sublease shall remain in full force and effect, and is hereby
ratified and confirmed by the parties hereto, except as amended herein.
1. DEFINED TERMS. All terms defined in the Sublease and used herein
shall, unless otherwise defined herein, have the meanings ascribed to such terms
in the Sublease.
2. SUBLEASED PREMISES. The Subleased Premises shall be reduced from
103,386 rentable square feet to approximately 36,000 rentable square feet, such
space being located on the second floor of the Building and more particularly
shown on the floor plan attached hereto as EXHIBIT D.
3. TERM. Section 2 (TERM) of the Sublease is hereby amended and
restated in its entirety as follows:
"The term of this Sublease (the "Sublease Term") shall
commence on August __, 2002 (the "Sublease Term Commencement
Date") and shall expire on December 31, 2002. The Subtenant
shall have the right to extend the Sublease Term for six month
period after December 31, 2002, provided that Subtenant
delivers written notice to the Sublandlord of such extension
on or before November 1, 2002. In the event Subtenant extends
the Sublease Term as provided in the foregoing sentence, the
Sublease Term shall continue until either party hereto
delivers six (6) months prior written notice to the other
party whereupon this Sublease shall terminate effective as of
the termination date noted in such termination notice."
4. BASE RENT. Section 4 (Base Rent) of the Sublease is hereby amended
and restated in its entirety as follows:
"Subtenant shall pay to Sublandlord, in advance, in monthly
installments, without withholding, offset or reduction, gross
rent at the rate of $14.00 per rentable square foot per year
(i.e., $42,000.00 per month) for the period of September 1,
2002 (the "Rent Commencement Date") through the end of the
Sublease Term (the "Initial Period Rent"). Notwithstanding the
foregoing sentence, in the event Subtenant exercises its right
to extend the Sublease Term in accordance with Section 2 above
beyond August 31, 2003, the gross rent rate shall increase by
3.5% to $14.42 per rentable square foot per year (i.e.,
$43,260.00 per month) and by an additional 3.5% on the 1st day
of September each year thereafter (the "Extension Period
Rent"). Subtenant acknowledges that Sublandlord's payments of
monthly rent for the Subleased Premises are paid to the Prime
Landlord on the first day of each calendar month and Subtenant
therefore covenants and agrees that its payments of monthly
rent hereunder shall be paid to Sublandlord by the first day
of each month."
Subtenant shall deliver to Sublandlord upon execution of this Sublease
first month's rent for September, 2002 in the amount of $42,000.00.
5. ADDITIONAL RENT. Section 5 (Additional Rent) of the Sublease is
hereby amended and restated in its entirety as follows:
"Subtenant acknowledges that pursuant to the Prime Lease, Sublandlord
is obligated to pay to Prime Landlord, as additional rent, taxes,
operating costs and parking rent each calendar year. Subtenant shall
pay to Sublandlord with its monthly payment of monthly rent (or, if so
directed by Sublandlord, within 10 days of Subtenant's receipt of an
invoice therefor), $6.35 per rentable square foot per year (i.e.,
$19,050.00 per month). The amounts paid by Subtenant under this Section
5 shall be subject to the adjustments described in Article 9 of the
Prime Lease."
6. SUBJECT TO PRIME LEASE. The Lease shall remain in full force and
effect in all respects, except to the extent it is amended hereby.
Notwithstanding anything to the contrary herein, this Sublease shall terminate
and be of no further force and effect upon termination of the Prime Lease for
any reason, without liability to Sublandlord whatsoever. In addition, under no
circumstances shall Sublandlord be liable for failure to perform any obligation
hereunder if said obligation is an obligation of Prime Landlord under the Prime
Lease and Sublandlord is using
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diligent efforts to enforce its rights under the Prime Lease (after written
notice from Subtenant setting forth with reasonable detail the nature of Prime
Landlord's non-performance).
7. SUBTENANT IMPROVEMENT COSTS. Section 6 (Subtenant Improvement Costs)
of the Sublease hereby is deleted in its entirety.
8. EARLY TERMINATION. Section 11 (Early Termination) of the Sublease
hereby is deleted in its entirety.
9. SECURITY DEPOSIT. Subtenant shall deliver to Sublandlord upon
execution of this First Amendment $84,000 (two (2) months of Basic Rent)
("Subtenant's Security Deposit"), such sum to be held by Sublandlord as security
for the performance of Subtenant's obligations under this Sublease. Upon the
occurrence of any default by Subtenant hereunder after expiration of any
applicable grace or cure periods, Subtenant agrees that Sublandlord may apply
all or any part of Subtenant's Security Deposit, together with accrued interest,
if any, to any obligation of Subtenant hereunder. Such application shall not
excuse the default of Subtenant hereunder. If all or any portion of Subtenant's
Security Deposit is applied by Sublandlord against any of Subtenant's
obligations hereunder, Subtenant shall promptly restore Subtenant's Security
Deposit to its original amount. Interest on Subtenant's Security Deposit shall
in all instances be retained by Sublandlord. Sublandlord shall, promptly after
the expiration or earlier termination of the Sublease and after Subtenant has
vacated the Subleased Premises, return to Subtenant (or, at Sublandlord's
option, to the last assignee, if any, of Subtenant's interest herein), that
portion of the Subtenant's Security Deposit not used or applied by Sublandlord.
10. OTHER AMOUNTS. Subtenant and Sublandlord agree that no amounts
under the Sublease are due or will become due with respect to any periods ending
on or before the date of this First Amendment.
11. DEFAULT. In the event of a default under this Sublease, as amended,
by Subtenant, all past and future rent payment obligations provided for in this
Sublease for the remaining term hereunder will accelerate and become immediately
due and will be paid to the time of the default, together with such reasonable
costs as Sublandlord may incur for attorneys' fees and costs, and putting the
premises in good order, condition and repair.
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IN WITNESS WHEREOF, the parties have executed this Sublease as an
instrument under seal as of the date first written above.
SUBLANDLORD:
CMGI, INC. a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
SUBTENANT:
ENGAGE, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and General Counsel
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EXHIBIT A
PRIME LEASE
[See Attached]
EXHIBIT B
SUBLEASE
EXHIBIT C
PRIME LANDLORD CONSENT TO SUBLEASE AMENDMENT
The undersigned, as landlord under the Prime Lease, hereby consents to
this First Amendment of Sublease.
LANDLORD
ANDOVER XXXXX REALTY LIMITED
PARTNERSHIP, a Massachusetts limited
partnership
By: Brickstone Square Realty, Inc., a
Massachusetts corporation, general partner
By: _____________________________________
Name:
Its:
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EXHIBIT D
FLOOR PLAN OF
SUBLEASED PREMISES
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