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EXHIBIT 10.4
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "First Amendment") is made as of this
20th day of March, 2000 (the "First Amendment Effective Date"), by and between
TST 555/575 MARKET, L.L.C., a Delaware limited liability company ("Landlord"),
and ENGAGE TECHNOLOGIES, INC., a Delaware corporation ("Tenant").
RECITALS:
Landlord and Tenant are parties to that certain written Lease (the
"Lease"), dated as of December 22, 1999, under the terms of which Landlord
leased to Tenant, and Tenant leased from Landlord, certain premises (the
"Initial Premises") comprising the 4th, 5th and 6th floors of the office
building located at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the
"Building").
Landlord and Tenant now desire to amend the Lease to expand the Initial
Premises to encompass the 7th, 8th and 9th floors of the Building, comprising
approximately 35,013 rentable square feet, as more particularly described on
Exhibits X-0, X-0 and A-6 attached hereto (the "Expansion Premises").
NOW, THEREFORE, Landlord and Tenant hereby agree as follows:
All defined terms as used in this First Amendment shall have the same
meanings ascribed to them in the Lease, unless otherwise expressly set forth
herein.
Article 1 of the Lease is hereby amended in its entirety to read as
follows:
ARTICLE 1
BASIC LEASE PROVISIONS
BLOCK ONE The 5th and 6th floors of the Building, as more particularly
described on Exhibit A-1 and A-2 attached hereto.
BLOCK TWO The 4th floor of the Building, as more particularly
described on Exhibit A-3 attached hereto.
BLOCK THREE The 7th, 8th and 9th floors of the Building, as more
particularly described on Exhibits X-0, X-0 and A-6 attached
hereto.
PREMISES Block One, Block Two and Block Three.
BUILDING The building, fixtures, equipment and other improvements and
appurtenances now located or hereafter erected, located or
placed upon the land known as 000 Xxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx.
REAL PROPERTY The Building, together with the plot of land upon which it
stands.
COMMENCEMENT DATE December 22, 1999.
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RENT COMMENCEMENT The earlier to occur of (a) the 46th calendar day following
DATE (BLOCK ONE) the Commencement Date; and (b) the date Tenant physically
occupies Block One for purposes of commencing the conducting
of its business operations therein.
SCHEDULED RENT July 15, 2000
COMMENCEMENT DATE
(BLOCK TWO)
RENT COMMENCEMENT The earlier to occur of (a) the date Tenant physically
DATE (BLOCK TWO) occupies Block Two for purposes of commencing the conducting
of its business operations therein; and (b) 46 calendar days
following the vacation of Block Two by the existing tenant
thereof and tender of possession of Block Two free from all
personalty and debris, delivery of keys thereto and
reasonable access thereto.
SCHEDULED DELIVERY May 8, 2000
DATE (BLOCK THREE)
RENT COMMENCEMENT The earlier to occur of (a) the 46th calendar day following
DATE (BLOCK THREE) the date Landlord tenders possession of Block Three to
Tenant free from all personalty and debris, delivery of keys
thereto and reasonable access thereto for purposes of
commencement of construction; and (b) the date Tenant
physically occupies Block Three for purposes of commencing
the conduct of its business operations therein.
EXPIRATION DATE July 31, 2005.
TERM The period commencing on the Commencement Date (Block One)
and ending on the Expiration Date.
PERMITTED USES Executive and general offices including computer data and
laboratory rooms for the transaction of Tenant's business in
keeping with Comparable Buildings.
BASE YEAR Calendar year 2000.
TENANT'S Block One: 5.0950%
PROPORTIONATE Block Two: 2.5475%
SHARE Block Three: 7.6425%
Premises: 15.2850%
AGREED AREA OF 458,136 rentable square feet.
BUILDING
AGREED AREA OF Block One: 23,342 rentable square feet
PREMISES Block Two: 11,671 rentable square feet
Block Three: 35,013 rentable square feet
Premises: 70,026 rentable square feet
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FIXED RENT (BLOCK From the Rent Commencement Date (Block One) through the day
ONE AND BLOCK TWO) preceding the Rent Commencement Date (Block Two),
$1,120,416.00 per annum ($93,368.00 per month) and from the
Rent Commencement Date (Block Two) through the Expiration
Date, $1,680,624.00 ($140,052.00 per month).
FIXED RENT (BLOCK From the Rent Commencement Date (Block Three) through the
THREE) Expiration Date, $1,995,741.00 ($166,311.75 per month).
ADDITIONAL RENT All sums other than Fixed Rent payable by Tenant to Landlord
under this Lease, including Tenant's Tax Payment, Tenant's
Operating Payment, late charges, overtime or excess service
charges, damages, and interest and other costs related to
Tenant's failure to perform any of its obligations under
this Lease.
RENT Fixed Rent and Additional Rent, collectively.
INTEREST RATE The lesser of (i) 4% per annum above the then-current Base
Rate, or (ii) the maximum rate permitted by applicable law.
SECURITY DEPOSIT $1,500,000.00 (subject to reduction as described in Article
(BLOCK ONE AND 28).
BLOCK TWO)
SECURITY DEPOSIT $2,494,676.00 (subject to reduction as described in Article
(BLOCK THREE) 28).
TENANT'S ADDRESS
FOR NOTICES Engage Technologies, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Copies to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
and
CMGI, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
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LANDLORD'S ADDRESS TST 555/575, L.L.C.
FOR NOTICES c/o Tishman Speyer Properties, L.P.
000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Copies to:
TST 555/575 Market, L.L.C.
c/o Tishman Speyer Properties, L.P.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Property Manager
and:
Tishman Speyer Properties, L.P.
000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
TENANT'S BROKER Xxxxxxx Realty Corporation and CRF Partners, Inc.
LANDLORD'S AGENT Tishman Speyer Properties, L.P. or any other person
designated at any time and from time to time by Landlord as
Landlord's Agent and their successors and assigns.
LANDLORD'S $350,130.00 ($15.00 per rentable square foot).
CONTRIBUTION (BLOCK
ONE)
LANDLORD'S $233,420.00 ($20.00 per rentable square foot).
CONTRIBUTION (BLOCK
TWO)
LANDLORD'S $700,260.00 ($20.00 per rentable square foot).
CONTRIBUTION (BLOCK
THREE)
PARKING PRIVILEGES 6
ALL CAPITALIZED TERMS USED IN THIS LEASE WITHOUT DEFINITION ARE DEFINED IN
EXHIBIT B.
Section 2.2 of the Lease is hereby amended by the addition of the
following:
If Landlord does not tender possession of Block Three to Tenant on or
before the Scheduled Delivery Date (Block Three), for any reason
whatsoever, Landlord shall not be liable for any damage thereby, and
this Lease shall not be void or voidable thereby. No failure to tender
possession of the applicable portion of the Premises to Tenant on or
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before the Scheduled Delivery Date (Block Three) shall in any way
affect any other obligations of Tenant hereunder; provided, however,
that Landlord shall use its commercially reasonable efforts to recover
possession of Block Three by the Scheduled Delivery Date, or as soon
thereafter as is reasonably feasible (without any obligation to
commence any unlawful detainer proceedings against Chevron
Corporation). In addition, Landlord covenants and agrees not to amend
the lease with Chevron Corporation in order to grant Chevron
Corporation the right to remain in possession of Block Three after May
31, 2000. The occurrence of the Rent Commencement Date (Block Three)
shall be determined on a floor-by-floor basis, and if Landlord is
delayed in recovering possession of one or more floors comprising
Block Three, such delay shall not affect the occurrence of the Rent
Commencement Date (Block Three) for such floors as Landlord has
recovered possession.
Section 2.4 of the Lease is hereby amended to provide that, upon execution
of this First Amendment, Tenant shall pay one month's Fixed Rent applicable to
Block Three.
Article 4 of the Lease is hereby amended by the addition of the following:
Tenant agrees and acknowledges that it shall be responsible, at its
sole cost and expense, for (i) ensuring that the core hardware to be
installed on all doors within Block Three by Tenant shall be
Building-Standard lever type where required by the ADA; (ii) ensuring
that the toilet rooms within Block Three are in compliance with the
ADA; (iii) upgrading the lobby separation doors on each floor of Block
Three in accordance with applicable Requirements; and (iv) replacing
the existing ceiling tiles and lighting in Block Three in accordance
with Building standards as reasonably established by Landlord.
Section 13.7(a) of the Lease is hereby amended by the addition of the
following: "For so long as Flycast Corporation, Inc. is a Related Corporation,
Landlord hereby consents to its occupancy of the Premises."
Section 28.5 of the Lease is hereby amended to provide that the provisions
thereof shall not be applicable to the Security Deposit (Block Three). In
addition, the second to last sentence of Section 28.5 is hereby amended by the
addition of the following to the end thereof: "and, if a replacement Letter of
Credit is delivered, Landlord shall return the prior Letter of Credit."
Article 28 of the Lease is hereby amended by the addition of Section 28.6,
to read as follows:
SECTION 28.6 REDUCTION. If no Event of Default then exists, then,
provided that Tenant complies with the
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provisions of this Section 28.6, then (i) on the 2nd anniversary of
the Rent Commencement Date (Block Three), the Security Deposit (Block
Three) shall be reduced to $1,995,741.00, (ii) provided the Security
Deposit (Block Three) shall have previously been reduced pursuant to
the preceding clause (i), on the 3rd anniversary of the Rent
Commencement Date (Block Three), the Security Deposit (Block Three)
shall be reduced to $1,496,805.00; and (iii) provided the Security
Deposit (Block Three) shall have previously been reduced pursuant to
the preceding clauses (i) and (ii), on the 4th anniversary of the Rent
Commencement Date (Block Three) the Security Deposit (Block Three)
shall be reduced to $997,870.00. The Security Deposit (Block Three)
shall be reduced as follows: (A) if the Security Deposit (Block Three)
is in the form of cash, Landlord shall, within 10 Business Days
following notice by Tenant to Landlord that Tenant is entitled to
reduce the Security Deposit (Block Three) pursuant to this Section
28.6, deliver to Tenant the amount by which the Security Deposit
(Block Three) is reduced, or (B) if the Security Deposit (Block Three)
is in the form of a Letter of Credit, Tenant shall deliver to Landlord
an amendment to the Letter of Credit (which amendment must be
reasonably accepted to Landlord in all respects), reducing the amount
of the Letter of Credit by the amount of the permitted reduction, and
Landlord shall execute the amendment and such other documents as are
reasonably necessary to reduce the amount of the Letter of Credit in
accordance with the terms hereof and, if a replacement Letter of
Credit is delivered, Landlord shall return the prior Letter of Credit.
If Tenant delivers to Landlord an amendment to the Letter of Credit in
accordance with the terms hereof, Landlord shall, within 10 Business
Days after delivery of such amendment, either (1) provide its
reasonable objections to such amendment, or (2) execute such amendment
of the Letter of Credit in accordance with the terms hereof.
Construction of the Initial Installations to Block Three shall be in
accordance with the Workletter attached hereto as Exhibit B.
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In all other respects, the Lease remains unchanged and in full force and
effect, including, without limitation, Tenant's obligation to maintain insurance
as set forth in the Lease. In the event of any conflict between this First
Amendment and the Lease, the terms of this First Amendment shall control. Tenant
acknowledges that Landlord is not in default in the performance of any of its
obligations under the Lease, and that Tenant has no claims or setoffs of any
kind.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment
to Office Lease as of the date set forth above.
LANDLORD: TENANT:
TST 555/575 MARKET, L.L.C., ENGAGE TECHNOLOGIES, INC.,
A Delaware limited liability company a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Its: Vice President Its: V.P and General Counsel
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By: /s/ Xxxxxxx X. Royal
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Its: CFO
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