EXHIBIT 10.71
AMENDMENT #8 TO LEASE
1. Parties.
This Amendment, dated as of November 6, 2001, is between Andover Xxxxx Realty
Limited Partnership ("Landlord") and CMGI, Inc. ("Tenant").
2. Recitals.
2.1 Landlord and Tenant have entered into Lease, dated as of April 12, 1999,
for space in Brickstone Square in Andover, Massachusetts (as now or hereafter
amended, the "Lease"). Unless otherwise defined, terms used in this Amendment
have the same meanings as those used in the Lease.
2.2 Tenant wishes to lease a designated portion of the Premises as shown in
Exhibit "B-8" attached hereto and incorporated herein (the "Specified Surplus
Space"), with a rentable area agreed to contain 26,053 square feet, to Cambridge
Soundworks, Inc., or one of its affiliates (the "New Tenant"), and has requested
Landlord's help in the leasing and buildout process. In order to accomplish this
and other matters, for $10.00 and other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties agree and the
Lease is amended as follows as of the date hereof, notwithstanding anything to
the contrary:
3. Amendment.
3.1 For a term of six (6) months from the date of this Amendment (the "Surplus
Term"), in order to help Tenant lease the Surplus Space, Tenant grants to
Surplus Landlord the ongoing right from time to time to market and show the
Space and negotiate and enter into a new lease with the New Tenant for the
Specified Surplus Space (the "New Lease"), with a term of between five (5) and
ten (10) years plus any extensions, and "Buildout Costs" and "New Tenant Costs"
as set forth in Section 3.2(a) below. Landlord has no obligation to exercise any
of these rights. The "Buildout Costs" means Landlord's good faith estimate of
the third-party hard and soft costs of the improvements, modifications, and
tenant allowances to be performed and/or paid for by the lessor in connection
with or as a result of the initial buildout of Specified Surplus Space under
that New Lease (the "Buildout").
3.2 If Landlord enters into the New Lease for the Specified Surplus Space per
Section 3.1, Landlord will notify Tenant in writing, and then:
(a) Within fifteen (15) days thereafter, Tenant will pay to or as
directed by Landlord the approved Buildout Costs for that New Lease as described
in Section 3.1 above, and leasing commissions for that New Lease (collectively,
the "New Tenant Costs") for ultimate payment by Landlord to the parties entitled
thereto as and when due, in addition to any rent payable by Tenant under the
Lease. Subject to the terms of this Amendment, the New Tenant Costs payable by
Tenant hereunder will not exceed Eight Hundred Eighty-five Thousand Eight
Hundred Two Dollars ($885,802).
(b) Within thirty (30) days thereafter, Tenant will remove all of
Tenant's Property from the Specified Surplus Space and surrender vacant
possession of the Specified Surplus Space to Landlord in the condition required
by the Lease. Tenant's Property not removed by that date will be deemed
abandoned by Tenant in favor of Landlord. If the New Lease is validly terminated
before the "Start Date" (defined below), possession of the Specified Surplus
Space will be returned to Tenant in its then "as-is" state and will continue to
be part of the Premises subject to all of the terms of the Lease, Landlord will
deliver to Tenant (or credit against rent owed by Tenant under the Lease) any
security deposit from the New Tenant that has been delivered to and may be
retained and applied Landlord under that New Lease, and Landlord will cooperate
reasonably with Tenant (at no cost or Liabilities to Landlord) in Tenant's
enforcement of any claims against the New Tenant under that New Lease.
(c) Landlord will supervise the performance of the Buildout to be
performed by the lessor under that New Lease, and at Tenant's request in each
instance will reasonably cooperate with and periodically report to Tenant to
keep Tenant informed as to the status of the Buildout, all at no additional
charge to Tenant. As consideration for Landlord's agreement above, Tenant hereby
waives and releases all claims of any type that it may have against Landlord or
any of its affiliated persons or entities in connection with the Buildout
(excluding any contractors or subcontractors), except for claims of Tenant
resulting from Landlord's failure to pay or cause to be paid any Buildout Costs
in excess of those for which Tenant is responsible hereunder. Subject to the
foregoing, Landlord will cooperate reasonably with Tenant (at no cost or
liability to Landlord) if Tenant wishes to assert claims against others in
connection with the Buildout. In addition to any other rights of Landlord,
Tenant acknowledges and agrees that Landlord, the New Tenant and their
respective professionals, contractors, subcontractors and representatives will
have the right to perform the Buildout and to enter the Specified Surplus Space
and other necessary areas of the Premises as may be necessary in connection
therewith. Subject to Section 3.2(b) above, once the New Lease is entered into
Landlord will have no obligations to Tenant with respect to that Specified
Surplus Space and Tenant will have no rights therein except as are specifically
set forth herein. Subject to Section 3.4 below, Tenant's surrender of possession
andlor the performance of the Buildout will not be deemed to be a termination of
the Lease in whole or in part nor will they operate to relieve, reduce or waive
any of Tenant's obligations under the Lease with respect to the payment of rent
or otherwise.
(d) Tenant will not be responsible for any costs for the New Lease in
excess of the New Tenant Costs per Section 3.2(a) above unless Tenant fails to
pay the New Tenant Costs or fails to vacate and surrender possession of space as
and when required, or otherwise defaults hereunder or under the rest of the
Lease. Tenant acknowledges and agrees that its timely payment in full of the New
Tenant Costs and its surrender of vacant possession as and when required are
material inducements to Landlord to enter into this Amendment, and Tenant's
failure to do so will be a default under the Lease, and in addition to any other
rights and remedies of Landlord, Tenant will be responsible for any Liabilities
incurred by Landlord under that New Lease and/or in connection with that
Specified Surplus Space resulting therefrom
3.3 [INTENTIONALLY OMITTED]
3.4 Subject to the terms hereof, and despite the entry into the New Lease and
the earlier surrender of possession, the Lease will continue for the Specified
Surplus Space until the "Start Date" for that New Lease. The "Start Date" for
that New Lease will be the date that the New Tenant under that New Lease accepts
the Specified Surplus Space and occupies a substantial part of that space to
conduct business, or the rent commencement date occurs under that New Lease,
whichever is earlier. As of the Start Date: (a) the Lease will terminate and
expire as to that Specified Surplus Space only (and no other space) and the
agreed rentable area of the remainder of the Premises will be reduced by the
rentable area of that Specified Surplus Space; (b) Tenant' s parking rights
under the Lease will be reduced by 78 vehicles (26 of which will be assigned
spaces), as shown in Exhibit "A-8" attached hereto; and (c) provided that Tenant
has complied with Sections 3.2(a) and (b) above and is not otherwise in default,
Tenant's Percentage will be reduced by 2.77% and Tenant's obligation to pay rent
for that Specified Surplus Space for periods thereafter will terminate.
3.5 Amendment #6 to Lease, dated 4/17/2001, and Amendment #7 to Lease, dated
4/18/2001, both are deleted from the Lease and are null and void.
3.6 As a material inducement to Tenant to enter into this Amendment, Landlord
agrees that, as of the date hereof, Tenant owes no amounts to Landlord except
the rent due under the Lease and Tenant is not, to Landlord's knowledge, in
default under the Lease.
3.7 As a material inducement to Landlord to enter into this Amendment Tenant
agrees that, as of the date hereof, Landlord owes no amounts to Tenant under the
Lease and Landlord is not, to Tenant's knowledge, in default under the Lease,
and Tenant agrees, represents and warrants to Landlord that: Tenant has not
leased, subleased, assigned or conveyed the Specified Surplus Space or its
interests therein to anyone else and has not employed or engaged any brokers or
agents in connection therewith or in connection with this Amendment, and in
either case will not (and will not have the right or power to) do so during the
Surplus Term.
3.8 The Lease remains in full force and effect, and except as set forth in this
Amendment, the Lease remains unchanged. Time is of the essence in this Amendment
and the rest of the Lease and holding over will not be permitted. Except for the
representations and warranties specifically set forth in this Amendment, neither
party has made nor relied on any representations and warranties of any type,
express or implied, in connection with this amendment or its subject matter.
Landlord and Tenant are not partners or joint venturers nor are they agents of
the other. Landlord will not be deemed to have assumed any of Tenant's
Liabilities by reason of Landlord's exercise of or failure to exercise any of
its rights hereunder or under the rest of the Lease, and Landlord is under no
obligation to exercise any of its rights hereunder or to exercise them in any
particular manner, including, without limitation, showing, marketing or
negotiating for the lease of any of the Specified Surplus Space. Notwithstanding
anything to the contrary, and without limiting the generality of the foregoing,
Landlord may in its sole and absolute discretion show, market, negotiate or
lease any or all of its own space in the Project to or with existing New Tenant
or other prospective tenants before, during, after or in lieu of showing,
marketing, negotiating or leasing any of the Specified Surplus Space, regardless
of the effect on the leasing of the Specified Surplus Space, and without
incurring any Liabilities to Tenant or
anyone else. On Landlord's written request from time to time, Tenant will
promptly execute and deliver to Landlord amendments to this Lease and/or the
existing Notice of Lease evidencing the termination of the Lease with respect to
the Specified Surplus Space and the other matters provided for in this
Amendment. Tenant's failure to execute and deliver such amendments will not be a
condition to the effectiveness of such termination and the other matters
provided for in this Amendment.
IN WITNESS WHEREOF, intending to be legally bound, the parties have
executed this Amendment as of the date in Article 1 above.
CMGI, INC., a Delaware corporation
By: /s/ Xxxxxx X. XxXxxxxx
Name: Xxxxxx X. XxXxxxxx
Title: Chief Financial Officer
Authorized Signature
ANDOVER XXXXX REALTY LIMITED PARTNERSHIP, a
Massachusetts limited partnership
By: Brickstone Square Realty, Inc., a Massachusetts
corporation,
General Partner
By: /s/ Illegible
Name: Illegible
Title:
Authorized Signature
