First Amendment to Lease Agreement between TST 555/575 Market, L.L.C. and Engage Technologies, Inc.

Summary

This amendment to the lease agreement between TST 555/575 Market, L.L.C. (Landlord) and Engage Technologies, Inc. (Tenant) expands the leased premises to include the 7th, 8th, and 9th floors of 575 Market Street, San Francisco. It updates key terms such as rent amounts, security deposits, and delivery dates for the new space. The amendment also clarifies the process and timing for the Tenant to take possession of the additional floors and adjusts the obligations of both parties accordingly. The lease now covers a total of 70,026 rentable square feet and runs through July 31, 2005.

EX-10.4 3 0003.txt FIRST AMENDMENT TO THE LEASE AGREEMENT 1 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 575 Market Street, San Francisco, California (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 A-4, A-5 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 A-4, A-5 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 575 Market Street, San Francisco, California. REAL PROPERTY The Building, together with the plot of land upon which it stands. COMMENCEMENT DATE December 22, 1999. 2 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 3 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. 100 Brickstone Square Andover, Massachusetts 01810 Attn: General Counsel Copies to: Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 Attn: Pamela Coravos, Esq. and CMGI, Inc. 100 Brickstone Square Andover, Massachusetts 01810 Attn: General Counsel 4 LANDLORD'S ADDRESS TST 555/575, L.L.C. FOR NOTICES c/o Tishman Speyer Properties, L.P. 520 Madison Avenue, Sixth Floor New York, New York 10022 Attn: Chief Financial Officer Copies to: TST 555/575 Market, L.L.C. c/o Tishman Speyer Properties, L.P. 575 Market Street, 20th Floor San Francisco, California 94105 Attn: Property Manager and: Tishman Speyer Properties, L.P. 520 Madison Avenue, Sixth Floor New York, New York 10022 Attn: General Counsel TENANT'S BROKER Cushman 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 5 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 6 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. 7 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/ Andrew J. Nathan By: /s/ Michael K. Baker ----------------------------- ------------------------------ Its: Vice President Its: V.P and General Counsel ----------------------------- ------------------------------ By: /s/ Stephen A. Royal ------------------------------ Its: CFO ------------------------------