Exhibit 10.15
AMENDMENT TO SUBLEASE
THIS AMENDMENT TO SUBLEASE ("Amendment"), dated September 15, 2000 for
reference purposes only, is entered into by and between XXXXXX.XXX, INC.
("Sublessor") and NAPSTER, INC. ("Sublessee").
RECITALS
A. Pursuant to that certain Lease Agreement (the "Master Lease") dated
September 14, 1999, as amended by that certain Addendum to Industrial Real
Estate Lease dated on or about September 21, 1999, Xxxxxxxxx and Xxxxx Xxxxxxxx
("Master Lessor") leased to Sublessor that certain real property located at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx, more particularly described in the
Master Lease (the "Premises"). The term of the Master Lease commenced on October
1, 1999 and will expire on September 30, 2003.
B. Pursuant to that certain Sublease dated June 26, 2000 between the
parties hereto, Sublessor leased the Premises to Sublessee for a term that
commenced on July 3, 2000 and will expire on June 30, 2001, unless sooner
terminated pursuant to the terms of the Sublease; provided, however, that
Sublessee is entitled to one option to renew the Sublease for six (6) months,
from July 1, 2001 to December 31, 2001. Capitalized terms not otherwise defined
herein will have the same meanings as provided in the Sublease.
C. Sublessor, Sublessee, and U.S. Bank Trust National Association
entered an Escrow Agreement ("Escrow Agreement") dated July 11, 2000, pursuant
to which an escrow fund was established to secure and facilitate the payment to
Sublessor of amounts payable under the Sublease.
D. Sublessor and Sublessee now desire to amend the term, rent, and
other provisions of the Sublease as follows.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, Sublessor and Sublessee covenant and agree as
follows:
AGREEMENT
1. RECITALS. The following Recital D is added to the Sublease
immediately following Recital C.
D. Sublessor is an online provider of custom printed
products and print services. Sublessee desires to purchase from
Sublessor, throughout the term of this Sublease (including any renewal
term), certain of Sublessor's products and services.
2. ADDITIONAL RENEWAL OPTION & RELATED. Subsection 2.1 of the Sublease
is deleted in its entirety and the following Subsections 2.1 and 2.2 are
substituted.
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2.1 FIRST RENEWAL OPTION. Sublessee shall have an option to
renew this Sublease for six (6) months, from July 1, 2001 to December
31, 2001 ("First Option Period"), by providing Sublessor with
Sublessee's written notice of its intent to exercise such option by
March 1, 2001. The Rent for the First Option Period shall be Six
Dollars ($6.00) per rentable square foot per month, or Sixty-three
Thousand Two Hundred Forty Dollars ($63,240.00) per month. If
Sublessee timely exercises its right to renew for the First Option
Period, Sublessee shall deposit in the escrow account described in
Section 5.2 of this Sublease an additional Five Hundred Eighty Four
Thousand Nine Hundred and Seventy Dollars ($584,970.00) no later than
May 31, 2001 for the entire Rent and Printing Commitment (defined in
Section 5.1(c) below) for the First Option Period. If Sublessee does
not make such deposit by May 31, 2001, the right to renew shall be
automatically terminated.
2.2 SECOND RENEWAL OPTION. Provided Sublessee properly
exercises the foregoing renewal option and remains in the Premises and
in compliance with this Sublease through the end of the First Option
Period, Sublessee shall have a second option to renew this Sublease
for six (6) months, from January 1, 2002 to June 30, 2002 ("Second
Option Period"), by providing Sublessor with Sublessee's written
notice of its intent to exercise such option by September 1, 2001. The
Rent for the Second Option Period shall be Six Dollars ($6.00) per
rentable square foot per month, or Sixty-three Thousand Two Hundred
Forty Dollars ($63,240.00) per month. If Sublessee timely exercises
its right to renew for the Second Option Period, Sublessee shall
deposit in the escrow account described in Section 5.2 of this
Sublease an additional Five Hundred Eighty Four Thousand Nine Hundred
and Seventy Dollars ($584,970.00) no later than November 30, 2001 for
the entire Rent and Printing Commitment (defined in Section 5.1(c)
below) for the Second Option Period. If Sublessee does not make such
deposit by November 30, 2001, the right to renew shall be
automatically terminated.
3. FINANCIAL PROVISIONS. The title of Section 5 of the Sublease, and
Section 5.1 of the Sublease, are deleted in their entirety and the following is
substituted.
5. FINANCIAL PROVISIONS.
5.1 GENERAL.
(a) RENT. Rent (herein so called) shall be the sum of Six
Dollars ($6.00) per rentable square foot per month, or Sixty-three
Thousand Two Hundred Forty Dollars ($63,240.00) per month.
(b) PRINTED PRODUCTS. Throughout the term of this Sublease
(including all renewal terms), Sublessee shall be entitled to purchase
Printed Products from Sublessor. As used herein, "Printed Products"
means Sublessor's then-standard products, as well as other printed
products Sublessor agrees to produce for
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Sublessee. Sublessor will give reasonable consideration to all of
Sublessee's requests for printed products.
(c) PRINTING COMMITMENT. Each calendar quarter during the
term of this Sublease (including all renewal terms, quarters
commencing July 1, October 1, January 1, and April 1), Sublessee shall
be entitled to purchase up to One Hundred Two Thousand Seven Hundred
and Sixty-Five Dollars ($102,765.00) of Printed Products at
Sublessor's then standard, fair market prices. This quarterly amount
is referred to herein as the "Printing Commitment." Sublessee shall
pay to Sublessor on the first day of each month, in accordance with
the escrow provision below and the Escrow Agreement, as amended,
exactly one-third (1/3) of the Printing Commitment, or Thirty-Four
Thousand Two Hundred Fifty-Five Dollars ($34,255.00). Payment of the
Printing Commitment shall continue uninterrupted throughout all
renewal terms of this Sublease.
(d) ORDERS & USE OF PRINTING COMMITMENT. Throughout each
calendar quarter Sublessee may place orders with Sublessor for Printed
Products. The total amount payable to Sublessor for all Printed
Products shipped during the quarter shall not exceed the Printing
Commitment. Notwithstanding the foregoing, orders in excess of the
Printing Commitment may be placed with Sublessor, but must be paid in
advance (or be subject to any other payment terms upon which the
parties agree). Should the total amount payable to Sublessor for all
Printed Products shipped during the quarter fall short of the Printing
Commitment, the balance will be retained by Sublessor in consideration
for the printing services and related commitments hereunder. Orders
shipped by Sublessor during the next subsequent quarter will be
applied to the next subsequent Printing Commitment. Notwithstanding
this, in the event Sublessor fails to ship Printed Products within any
agreed upon lead time or by any agreed upon date ("Agreed Shipment
Date"), and the actual date on which the Printed Products are shipped
falls in a calendar quarter other than the quarter in which the Agreed
Shipment Date falls, then all charges for such delayed orders will be
applied to the Printing Commitment for the quarter in which the Agreed
Shipment Date falls. Under no circumstances will any Printing
Commitment hereunder be subject to any set-off or refund.
4. CONSISTENCY CHANGES. Consistent with the foregoing, the following
modifications of the Sublease are adopted.
(a) The term "Rent" in Sections 3.1 and 11 is changed to
"Rent or Printing Commitment."
(b) The term "Rent" in Sections 5.3, 5.5, 11.1, 11.2(a),
11.2(b), and 11.2(c) is changed to "Rent and Printing Commitment."
(c) The term "rent" in the third line of Section 5.2 of the
Sublease is changed to "Rent and Printing Commitment."
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(d) The term "rental" in Section 11.2(b) and 11.2(c) of the
Sublease is changed to "Rent and Printing Commitment."
5. MASTER LESSOR CONSENT. This Amendment is subject to the condition
precedent of Sublessor obtaining Master Lessor's consent as required by Article
Nine of the Master Lease, which consent shall be evidenced by Master Lessor's
execution of this Amendment as set forth below.
6. BALANCE OF SUBLEASE CONTINUES. All other provisions of the Sublease
shall remain unmodified and continue to be in full force and effect
7. COUNTERPARTS. This Amendment may be signed in two or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
SUBLESSOR:
XXXXXX.XXX, INC.
BY:----------------------------------
ITS:---------------------------------
SUBLESSEE:
NAPSTER, INC.
BY:----------------------------------
ITS:---------------------------------
Master Lessor hereby consents to the foregoing Amendment.
MASTER LESSOR:
By: -----------------------------
Xxxxxxxxx Xxxxxxxx
By: -----------------------------
Xxxxx Xxxxxxxx
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