FindLaw | Find a Lawyer. Find Answers.
Are you a legal Professional?
My current location:
Los Angeles, CA
| Change location
| Featured Legal Services | |
Providing Exceptional Representation for Businesses. Call Today to Speak with Our Attorneys. 1-888-WHGCLaw (944-2529)
|
1-888-WHGCLaw
|
This Sublease (Sublease) is made this 4th day of January, 1999 by and between
HI/FN, Inc., a Delaware corporation ("Sublandlord") and NETFLIX.COM, Inc. a
California corporation ("Subtenant").
RECITALS
A. Sublandlord, as Tenant, is leasing from 750 University, a Limited Liability
Corporation (Landlord) those certain premises located at 750 University
Avenue, Los Gatos, California (Premises) pursuant to that certain lease
dated November 13, 1997 (Master Lease). Subtenant acknowledges having
received and reviewed a copy of the Master Lease.
B. Sublandlord desires to lease to Subtenant and Subtenant desires to lease
from Sublandlord a portion of the Premises consisting of approximately
eleven thousand eight hundred and fourteen (11,814) rentable square feet,
located on the ground floor (the Sublease Premises") as shown on Exhibit E
attached hereto, on the terms and conditions set forth in this Sublease.
NOW, THEREFORE, the parties hereto agree as follows:
1. PREMISES.
Sublandlord leases to Subtenant and Subtenant hires from Sublandlord the
Sublease Premises, together with the appurtenances thereto.
2. INCORPORATION OF MASTER LEASE.
This Sublease is subject to all of the terms and conditions of the Master
Lease and Subtenant hereby accepts, assumes and agrees to perform during
the term of this Sublease all of the obligations of Sublandlord as Tenant
under the Master Lease to the extent applicable to the Sublease Premises
and all of the terms and conditions of this Sublease. The terms and
conditions of the Master Lease are incorporated in this Sublease, except
that (i) unless stated to the contrary below, each reference in the
incorporated paragraphs to "Lease" shall be deemed a reference to this
"Sublease", each reference to the "Landlord" shall be deemed a reference to
the "Sublandlord", each reference to the "Tenant" shall be deemed a
reference to the "Subtenant", each reference to the "Premises" shall be
deemed a reference to the "Sublease Premises", each reference to the "Term"
shall be deemed a reference to the "Sublease Term", each reference to the
"Rent" shall be deemed a reference to the "Rent" as described in Section 6
of this Sublease, and (ii) the following terms and conditions of the Master
Lease shall be excluded or modified as follows: the first and second
sentences of the first paragraph of the recitals, Paragraphs 1, 2, 3, 4, 5,
7, 8, 9, and 11 of the Summary of Lease, and Paragraphs 2, 3, 4, 5, the
last sentence of the third paragraph of Paragraph 8, the last sentence of
the first
-1-
<PAGE>
paragraph of Paragraph 9, the fourth sentence of the third paragraph of
Paragraph 11, the last sentence of the first paragraph and the entire last
paragraph of 12, 13, the last sentence of the last paragraph of Paragraph
15, 22, the first sentence of Paragraph 27, the second and third sentences
of the second paragraph of Paragraph 29, 37, 47, the entire second
paragraph of Paragraph 49, 51, 52, 54, 55, 56, 57, and the Lease Guaranty,
Exhibits A, C, C-1 and D of the Master Lease are not incorporated herein,
and each reference to Landlord in Sections 15, 16, 21, 30, 35 and 36 shall
be deemed to refer to Landlord only and not to Sublandlord.
Subtenant shall not commit or permit to be committed on the Sublease
Premises any act or omission which shall violate any term or condition of
the Master Lease incorporated herein or modified hereby. In the event of
the termination for any reason of Sublandlord's interest as Tenant under
the Master Lease, then this Sublease shall terminate therewith without any
liability of Sublandlord to Subtenant; except that if this Sublease
terminates as a result of a default of one of the parties hereto, whether
under this Sublease, the Master Lease, or both, the defaulting party shall
be liable to the non-defaulting party for all damages suffered by the non-
defaulting party resulting from such termination.
3. SUBLANDLORD'S OBLIGATIONS.
Sublandlord agrees that Subtenant shall be entitled to receive all services
and repairs to be provided by Landlord to Sublandlord as tenant under the
Master Lease with respect to the Sublease Premises. Sublandlord covenants
and agrees with Subtenant that Sublandlord shall perform all other
obligations of Tenant pursuant to the Master Lease to the extent that
failure to perform the same would adversely affect Subtenant's use or
occupancy of the Sublease Premises. Sublandlord also agrees that
Sublandlord will act as a conduit to transmit any instructions or requests
by Subtenant to Landlord.
4. TERM.
The term of this Sublease shall be for a period of twenty-four (24) months
commencing on the date that is the later of (i) February 1, 1999 or (ii)
the date Sublandlord delivers to Subtenant possession of the Sublease
Premises in broom clean condition with all approvals and permits from the
appropriate governmental authorities required for the legal occupancy of
the Sublease Premises for Sublessee's intended use (the "Commencement
Date") and ending on January 31, 2001 (the "Sublease Term,") In the event
Sublandlord is unable to deliver possession of the Sublease Premises at the
commencement of the Sublease Term, with the voice and data wiring referred
to in. Exhibit G installed by Sublandlord, Sublandlord shall not be liable
for any damage caused thereby, nor shall this Sublease be void or voidable
nor shall the term hereof be extended by such delay; provided, however,
that Subtenant shall not be liable for rent until such time as Sublandlord
offers to deliver possession of the Sublease Premises to Subtenant.
Notwithstanding anything to the contrary herein, if the Commencement Date
has not occurred prior to March 1, 1999, then, in addition to Subtenant's
other rights and remedies. Subtenant may terminate the Sublease by written
notice to Sublandlord,
-2-
<PAGE>
whereupon any monies previously paid by Subtenant to Sublandlord shall be
reimbursed to Subtenant.
5. USE.
Subtenant shall use the Sublease Premises for general office and research
and development and for no other purpose.
6. RENTAL.
(a) Subtenant shall pay to Sublandlord as rent for the Sublease Premises,
in advance, on the first day of each calendar month during the
Sublease Term, without deduction, offset, prior written notice or
demand; in lawful money of the United States, the sum of Thirty-six
Thousand Six Hundred Twenty-three and 40/100ths Dollars ($36,623.40)
(see Rent Schedule, "Exhibit F"). If the Commencement Date is not the
first day of the month, a prorated monthly installment shall be paid
at the then current rate for the fractional month during which the
Sublease commences.
(b) Except as provided in subparagraph (a) above, on or before the
Commencement Date, Subtenant shall pay Sublandlord the sum of Thirty-
six Thousand Six Hundred Twenty-three and 40/100ths Dollars
($36,623.40) as rent for the first month of the Sublease Term.
(c) Concurrently with Subtenant's execution of this Sublease, Subtenant
shall deposit with Sublandlord the sum of Seventy-three Thousand Two
Hundred Forty-six and 80/100ths Dollars ($73,246.80) as a non-interest
bearing security deposit for Subtenant's performance under this
Sublease. Within thirty (30) days after Subtenant has vacated the
Sublease Premises at the expiration or earlier termination of the
Sublease Term, the amount paid as security deposit shall be returned
to Subtenant after first deducting any sums that are needed by
Sublandlord to cure defaults of Subtenant under this Sublease or
compensate Landlord for damages for which Subtenant is liable pursuant
to this Sublease.
7. SURRENDER AT END OF TERM.
Subtenant agrees to surrender the Sublease Premises on expiration or
earlier termination of the Sublease Term, in the same condition and repair
as received on the Commencement Date, acts of God, condemnation, casualty,
hazardous materials not released by Subtenant, and reasonable wear and tear
excepted. In addition, on or prior to the expiration or earlier termination
of this Sublease, at Sublandlord's option, Subtenant shall remove, at
Subtenant's sole cost and expense, all telephone, other communication,
computer and any other cabling and wiring or any sort installed in the
space above the suspended ceiling of the Sublease Premises or anywhere else
in the Sublease Premises and shall promptly repair any damage to the
suspended ceiling, lights, light fixtures, walls and any other part of the
Sublease Premises resulting from such removal.
-3-
<PAGE>
8. LANDLORD'S WRITTEN CONSENT.
This Sublease is conditioned upon and effective only upon obtaining the
written consent of Landlord. Sublandlord shall use reasonable efforts to
obtain Landlord's consent as soon as possible. If, however, Landlord's
consent has not been obtained by February 1, 1999, then Subtenant shall
have the right to terminate this Sublease, in which event Sublandlord shall
promptly refund to Subtenant all amounts theretofore paid by Subtenant
hereunder.
9. NOTICES.
All notices and demands of any kind given by Sublandlord or Subtenant
hereunder shall be in writing and sent by the United States mail, postage
prepaid, by overnight courier or by personal delivery. All such notices and
demands shall be addressed to Sublandlord or Subtenant, as the case may be,
at the addresses set forth below their respective signatures or at such
other addresses as they may designate from time to time, and shall be
effective upon receipt.
10. INSURANCE.
Insurance requirements pertaining to Sublandlord as Tenant under Paragraph
11 of the Master Lease shall also apply to Subtenant.
11. BROKER.
Sublandlord and Subtenant represent and warrant to each other that, with
the exception of Mike Filice of CPS, the Commercial Property Services
Company, and Bob Shepherd of Colliers International, no brokers were
involved in connection with the negotiation or consummation of this
Sublease. Each party agrees to indemnify the other, and hold it harmless,
from and against any and all claims, damages, losses, expenses and
liabilities (including reasonable attorney's fees) incurred by said party
as a result of a breach of this representation and warranty by the other
party. Sublandlord shall pay all commissions due and owing to CPS and
Colliers International arising out of and in connection with the Sublease.
12. SIGNAGE.
Sublandlord shall use reasonable efforts to provide Subtenant with Project
directory signage reasonably satisfactory to Subtenant.
13. SUBLANDLORD'S COVENANTS.
Sublandlord shall (i) keep the Master Lease in effect; (ii) not modify,
amend or waive any provisions thereof or make any election, exercise any
option, right or remedy, or grant any consent or approval thereunder
without, in each instance, Subtenant's prior written
-4-
<PAGE>
consent; (iii) pay the rent due and perform all of Sublandlord's other
obligations under the Master Lease, except to the extent that Subtenant is
obligated to perform such other obligations under the Sublease; (iv) not
take any action or omit to take any action that could cause or constitute a
breach of the Master Lease or otherwise give rise to a right of Landlord to
terminate the Master Lease or declare any provision thereof to have become
ineffective; (v) enforce performance of all obligations of Landlord under
the Master Lease; and (vi) immediately send Subtenant copies of any notices
received by Sublandlord from Landlord that could affect Subtenant's use of
the Sublease Premises or rights under the Sublease, including, without
limitation, any notices of default under the Master Lease. In enforcing
performance of all such obligations of Landlord, Sublandlord shall, upon
Subtenant's written request, immediately notify Landlord of its
nonperformance under the Master Lease and request that Landlord perform its
obligations under the Master Lease.
14. SUBLANDLORD'S REPRESENTATIONS AND WARRANTIES.
(a) As an inducement to Subtenant to enter into this Sublease, Sublandlord
represents and warrants that (i) the form of the Master Lease as
Exhibit "A" is true, correct and complete and has not been modified in
any respect; and (ii) to the best of Sublandlord's knowledge, both the
Master Lease is in full force and effect, and there exists no default
or event of default under the Master Lease by either Landlord or
Sublandlord, nor has there occurred any event which, with the giving
of notice or the passage of time or both, could constitute such a
default or event of default.
(b) In addition, Sublandlord warrants and represents that, as of the
Commencement Date, (i) the Sublease Premises will comply with all
applicable laws, rules, regulations, codes, ordinances, underwriters'
requirements, covenants, conditions, and restrictions, (ii) the
Sublease Premises will be in good and clean operating condition and
repair, and (iii) the electrical, mechanical, HVAC, plumbing, sewer,
elevator and other systems serving the Sublease Premises will be in
good operating condition and repair. Sublandlord shall, promptly after
receipt of notice from Subtenant, remedy or cause to be remedied any
non-compliance with such warranty at Sublandlord's sole cost and
expense.
15. ADDITIONAL RENT.
This is a full-service gross sublease. Subtenant's only obligation with
regard to the repair and maintenance of the Sublease Premises shall be to
keep the Sublease Premises in a clean and sanitary condition. Sublandlord
shall, at Sublandlord's sole cost, maintain the Sublease Premises and all
systems serving the Sublease Premises in good working condition and repair
throughout the Sublease Term. Subtenant's base rent constitutes the entire
consideration payable by Subtenant. Under no circumstances shall Subtenant
be obligated to pay any items of additional rent required to be paid under
the Master Lease, including, without limitation, Direct Expenses, rent
escalation charges, common area
-5-
<PAGE>
maintenance charges, real estate taxes, or insurance charges (as defined in
Paragraphs 4 and 5 of the Master Lease).
16. ABATEMENT OF RENT.
Subtenant shall be entitled to, and benefit from, any rental abatement
granted Sublandlord under the Master Lease, but only to the extent that
such abatement relates to the Sublease Premises.
17. WAIVER OF SUBROGATION.
Notwithstanding anything to the contrary contained in the Sublease or the
Master Lease, the parties hereto, including Landlord by reason of its
consent hereto, each release the others and their respective agents,
employees, successors, assignees and subtenants from all liability for
injury or damage to any property to the extent specified in Paragraph 11 of
the Master Lease.
18. INDEMNITY.
Except to the extent caused by any default of Subtenant, its agents,
employees, contractors or invitees, Sublandlord shall indemnify, defend
with counsel reasonably acceptable to Subtenant, and hold Subtenant
harmless from and against any and all losses, costs, claims, liabilities
and damages (including, without limitation, reasonable attorneys' and
experts' fees) caused by or arising in connection with (i) a breach of
Sublandlord's obligations under the Sublease; (ii) a breach of
Sublandlord's obligations under the Master Lease, unless cause by
Subtenant's breach of its parallel obligations under the Sublease; or (iii)
the negligence or willful misconduct of Sublandlord, its employees,
contractors, agents or invitees.
19. APPROVALS.
---------
Whenever the Sublease requires an approval, consent, designation,
determination, selection or judgment by either Sublandlord or Subtenant,
such approval, consent, designation, determination, selection or judgment
and any conditions imposed thereby shall be reasonable and shall not be
unreasonably withheld or delayed and, in exercising any right or remedy
hereunder, each party shall at all times act reasonably and in good faith.
20. REASONABLE EXPENDITURES.
Any expenditure by a party permitted or required under the Sublease, for
which such party is entitled to demand and does demand reimbursement from
the other party, shall be limited to the fair market value of the goods and
services involved, shall be reasonably incurred, and shall be substantiated
by documentary evidence available for inspection and review by the other
party or its representative during normal business hours.
-6-
<PAGE>
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease
as of the date first set forth above.
SUBLANDLORD: SUBTENANT:
HI/FN, INC., NETFLIX.COM. INC.,
a Delaware corporation a California corporation
By: /s/ R. J. Farnham By: /s/ Rood Hastings
------------------------------- --------------------------------
Name: R. J. Farnham Name: Rood Hastings
----------------------------- ------------------------------
Its: President Its: President
------------------------------ -------------------------------
Date: 1-6-99 Date: 3 JAN 98
----------------------------- ------------------------------
By: /s/ William R. Walker By: /s/ Marc Randolph
------------------------------- --------------------------------
Name: William R. Walker Name: Marc Randolph
----------------------------- ------------------------------
Its: Secretary Its: Secretary
------------------------------ -------------------------------
Date: JAN 6 1999 Date: 5 Jan 98
----------------------------- ------------------------------
-7-
<PAGE>
LANDLORD'S CONSENT TO SUBLEASE
THIS CONSENT (Consent) is given by 750 University, a Limited Liability
Corporation (Landlord) to that certain Sublease dated January 4, 1999, (the
Sublease) by and between HI/FN, Inc., a Delaware corporation ("Sublandlord") and
NETFLIX.COM, Inc, a California corporation ("Subtenant"), subject to the
following terms and conditions:
1. All capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in the Sublease.
2. Landlord is not a party to the Sublease and has no obligations or duties to
Subtenant or Sublandlord under the Sublease and any provisions therein
purporting to obligate and/or bind Landlord or limit Landlord's rights
under the Master Lease in any way are deemed null and void. Notwithstanding
any provision to the contrary in the Sublease, Subtenant shall have no
greater rights than Sublandlord has as Tenant under the Master Lease.
3. This Consent shall only apply to this Sublease and shall not be deemed to
be a consent to any other or further sublease or a waiver of any of the
provisions of the Master Lease.
4. By consenting to the Sublease, Landlord waives none of its rights against
the Sublandlord as Tenant under the Master Lease. The Sublease is and shall
remain at all times subject to and subordinate in all respects to the
Lease.
5. This Consent shall not modify or amend or be deemed to modify or amend the
Master Lease in any way, or to impose on Landlord any obligation to provide
notice to, or obtain consent from, Subtenant with respect to amendments,
defaults, waivers or any other matters pertaining to the Master Lease or to
the Premises covered by the Master Lease. Any waiver by Landlord of its
rights shall be made only in writing and signed by Landlord.
6. Upon the expiration or earlier termination of the Master Lease, the
Sublease shall automatically and without notice or demand, terminate and
Subtenant agrees promptly to surrender the Sublease Premises to Landlord
upon such termination without compensation from Landlord.
7. This Consent shall not be effective until receipt by Landlord of a
counterpart or counterparts of this Consent duly executed by Sublandlord
and Subtenant, each acknowledging its agreement to the terms and conditions
specified in this Consent.
-8-
<PAGE>
8. Notwithstanding anything to the contrary herein, Landlord specifically
agrees to paragraph 17 of the Sublease entitled "Waiver of Subrogation."
LANDLORD
750 University, a Limited Liability Corporation
By: /s/ Birk S. McCandless By: /s/ Barry McCarthy
----------------------------------- -------------------------------
Name: Birk S. McCandless Name: _____________________________
---------------------------------
Its: President Its: Secretary
Date: 1/11/99 Date: _____________________________
---------------------------------
EACH OF THE UNDERSIGNED HEREBY ACKNOWLEDGE THAT IT HAS READ AND UNDERSTANDS THE
TERMS AND CONDITIONS SPECIFIED IN THE FOREGOING CONSENT AND AGREES TO ALL SUCH
TERMS AND CONDITIONS.
SUBLANDLORD SUBTENANT
HI/FN, INC., NETFLIX.COM. INC.,
a Delaware corporation a California corporation
By: /s/ R.J. Farnham By: /s/ Reed Hastings
----------------------------------- -------------------------------
Name: R.J. Farnham Name: Reed Hastings
--------------------------------- -----------------------------
Its: President Its: President
---------------------------------- ------------------------------
Date: 1-6-99 Date: 3 JAN 98
--------------------------------- -----------------------------
By: /s/ William R. Walker By: /s/ Marc Randolph
----------------------------------- -------------------------------
Name: William R. Walker Name: Marc Randolph
--------------------------------- -----------------------------
Its: Secretary Its: Secretary
---------------------------------- ------------------------------
Date: JAN 9 1999 Date: 5 Jan 98
--------------------------------- -----------------------------
-9-
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.6
<SEQUENCE>9
<DESCRIPTION>LEASE AGREEMENT
<TEXT>
<PAGE>
EXHIBIT 10.6
THIS LEASE IS NOT TO BE CONSTRUED AS AN OFFER AND IS NOT BINDING ON BARRISTER
EXECUTIVE SUITES, INC. UNTIL IT IS SIGNED BY AN OFFICER OF BARRISTER EXECUTIVE
SUITES, INC.
LEASE AGREEMENT
---------------
THIS LEASE is made on MARCH 31, 2000 between Barrister Executive Suites,
Inc. a California Corporation (hereinafter referred to as "Lessor"), and
NETFLIX.COM, INC. _________________________________________________ (hereinafter
----------------
referred to as "Lessee")
Lessor has entered into a master lease for the floor (the "Suite")
described below:
Floor or Suite Number: 5th Floor OR Suite 500
Name of Building: Computax Tower
Address: 21250 Hawthorne Boulevard
City and State: Torrance, California 90503
This Lease is subordinate to the lease with the Building ("Master Lease") dated
February 18, 1987 (as amended).
Lessee desires to lease from Lessor a certain portion of the Suite for the
purposes of conducting Lessee's business together with rights in common to the
"common areas" of the Suite.
In consideration of the covenants and promises each to the other made
herein, the parties hereto agree as follows:
1. LEASED PREMISES. Lessor agrees to lease to Lessee and Lessee agrees to
lease from Lessor portions of the Suite described below (the "Premises") and on
the floor plan attached hereto as Exhibit A. In addition to the exclusive use of
the Premises. Lessee shall have the non-exclusive right in common with Lessor's
other lessees to use all common areas and facilities available in the Suite.
Except as otherwise agreed to in writing. Lessee takes the Premises in an "as
is" condition.
(a) Office No(s). #5
--
(b) Desk Space No(s):_________________________________
Lessee shall be prohibited from using or occupying any premises other than
those premises designated in this Lease as the Premises. In the event that
Lessee uses or occupies any space other than the Premises without Lessor's
written consent. Lessee shall pay Lessor a sum designated by Lessor for the
unauthorized use of said space.
2. TERM. Except as it may be modified by the applicable provisions of
this Agreement, the term of this Lease shall be for a period of 6 months,
commencing on APRIL 17, 2000, and expiring on OCTOBER 31, 2000. If the term
-------------- ----------------
commences on a day other than the first of the month, the term shall expire on
the last day of the month identified herein, provided at least two (2) full
calendar months advance written notice of termination has been provided to
Lessor in the manner described in section 3 of this Lease.
* PLUS 14 (FOURTEEN DAYS)
1
<PAGE>
In the event the Premises are not ready for occupancy on the commencement
date, this Lease shall remain in full force and effect provided Lessor makes the
Premises available for occupancy within forty-five (45) days of the scheduled
commencement date. In such case all rent shall be abated until Lessor makes the
Premises available for occupancy. Lessor shall not be liable to Lessee for any
loss or damage arising from any delays: Lessee's sole remedy shall be the right
to cancel this Lease in the event Lessor fails to deliver possession of the
Premises as set forth herein. Lessee is advised that any floor plans provided by
Lessor are not to scale, the measurements are not always accurate, and the
Premises are not always built exactly as shown on the floor plans.
3. LEASE TERMINATION, Either party may terminate this Lease at the
expiration date set forth herein by giving two (2) calendar months advance
written notice effective on the expiration date set forth on page one (1) of
this Lease. If neither party sends written notice of termination to the other
party two (2) calendar months in advance of the expiration date, this Lease
shall automatically become a month-to-month agreement REQUIRING AT LEAST TWO (2)
FULL CALENDAR MONTHS ADVANCE WRITTEN NOTICE TO TERMINATE THE LEASE, EFFECTIVE
THE END OF THE SECOND FULL CALENDAR MONTH. IF THE LEASE HAS EXPIRED AND BECOME A
MONTH-TO-MONTH AGREEMENT, OR IF THE ORIGINAL TERM OF THE LEASE WAS MONTH-TO-
MONTH, TWO (2) FULL CALENDAR MONTHS ADVANCE WRITTEN NOTICE OF TERMINATION IS
REQUIRED, AND ANY SUCH TERMINATION SHALL ONLY BE EFFECTIVE THE END OF THE SECOND
FULL CALENDAR MONTH. FOR EXAMPLE: IF WRITTEN NOTICE OF TERMINATION IS RECEIVED
BY EITHER PARTY BY APRIL 30 TH. ANY SUCH NOTICE SHALL BE EFFECTIVE JUNE 30 TH.
IF WRITTEN NOTICE OF TERMINATION IS RECEIVED BY EITHER PARTY ON MAY 1 ST OR ANY
--------------------------------------------------------------------------------
LATER DATE IN MAY, ANY SUCH NOTICE SHALL NOT BE EFFECTIVE UNTIL JULY 31 ST.
---------------------------------------------------------------------------
Lessor's rent increase notice is not to be construed as a termination notice.
All notices must be given pursuant to section 13.
If Lessee fails to vacate the Premises for any reason after the termination
date or purports to rescind the termination notice after Lessor has already
leased Lessee's terminated space. Lessee will pay the rent the new tenant had
agreed to pay, plus any and all resulting damages and losses incurred by Lessor
because the new tenant cannot move into the space previously terminated by
Lessee.
4. RENT. Lessee agrees to pay Lessor as rental for the Premises the
following monthly sums:
$1,300.00 Office(s) (#5)
--------
$___________________ Desk space(s)
$___________________ Telephone Equipment and Service
$____________________Voicemail Box(es)
$____________________Furniture Rental (See Page 2A)
$1,300.00 Total monthly rent
--------
In addition to the above rent, Lessee shall be obligated to pay rent for
any space within the Suite which Lessee occupies but which is not included in
the Premises (the "unrented space"). Lessee's obligation for said unrented space
shall be at the rate set forth in Lessor's written notice to Lessee concerning
Lessee's occupancy of the unrented space. Lessee's obligation to pay rent for
the unrented space shall be effective as of the date in which Lessor gives
Lessee written notice of the rent to be paid for said space, and occupancy of
the unrented space shall be subject to all terms and conditions of this Lease.
The terms and conditions of this Lease are confidential, and Lessee agrees not
to reveal said terms and conditions to any third parties. Lessee's disclosure of
---
the terms and conditions of this Lease shall be cause for Lessor at
2
<PAGE>
Lessor's sole discretion to immediately terminate this Lease, or increase
Lessee's rental rates to Lessor's current asking price.
Rent shall be payable on or before the first day of each and every calendar
month during the term hereof. If the term commences on a day other than the
first day of the calendar month, rent shall be prorated based on the portion of
the calendar month remaining. Lessee's first payment shall include one month's
full rent, plus any partial calendar month's rent for the first month of the
Lease, plus the last month's rent, plus the security deposit and a set-up fee of
$150.00. At all times Lessee shall maintain the last month's rent with Lessor in
an amount equal to one (1) times the monthly rent paid by Lessee for the
Premises.
In addition to payment of the rent set forth herein. Lessee agrees to the
following: from any payment made by Lessee. Lessor shall first apply such sums
as are necessary to meet any of Lessee's outstanding obligations to Lessor. Said
obligations may arise from matters such as services Lessor provides Lessee. Any
remaining balance shall then be applied to Lessee's rent obligation in the
amount set forth above. In the event such remaining balance is not sufficient to
meet Lessee's rental obligation. Lessee shall pay upon written demand by Lessor
any remaining sums due. Failure to pay said sums when so demanded shall
constitute an event of default under this Lease.
Any and all sums Lessee is obligated to pay under the terms of this Lease
shall be construed as rent obligations in addition to the monthly rent set forth
herein. Such additional rent shall include a service charge of Fifty Dollars
($50.00) for each of Lessee's dishonored checks returned by the institution on
which said checks are drawn. If at any time during the term of this Lease Lessee
has tendered payment by check and Lessee's bank returns more than one such
payment for any reason including insufficient funds. Lessor may, at its option,
require all future payments be made by cashier's check. A Two Hundred Dollar
($200.00) handling charge for each Three Day Notice or Notice of Termination of
Services which Lessor is required to serve upon Lessee due to Lessee's failure
to make timely rent payments or breach of any other term or condition of this
Lease shall be assessed against Lessee to be paid with the monthly rent in the
event more than one of either notice is served during the term of the Lease. A
Seven Hundred Fifty Dollar ($750.00) handling charge will be further assessed
against Lessee in the event that Lessee does not render payment after service of
a Three Day Notice and Lessor then serves Lessee with an Unlawful Detainer
Action. Should Lessee not tender payment of the rent by the first (1st) business
day of each month, a late charge shall be assessed in an amount of five cents
($0.05) for each dollar ($1.00) so overdue for the purpose of defraying the
expense incident to handling such delinquent payment. In addition, Lessor may
discontinue any and all services provided Lessee, including, but not limited to,
use of all common areas, e.g., library and conference room, telephone answering
service, photocopying, word processing, fax and legal research. Should Lessor
discontinue any services above for non-payment, an administrative fee of One
Hundred Dollars ($100.00) will be assessed to reinstate said services. Lessee
hereby releases Lessor, its employees, agents, principals and contractors from
any liability for damages which Lessee may suffer as a result of Lessor's
suspension of services for the reasons stated herein.
5. SECURITY DEPOSIT. Upon execution of this Lease by Lessee. Lessee
will pay a security deposit in an amount of $1,550.00 which is equal to one (1)
---------
times the monthly rent plus a services deposit of Two Hundred Fifty Dollars
($250.00) as security for the performance by Lessee of its obligations under
this Lease. The security deposit will not be interest-bearing to Lessee. Lessor
will retain the security deposit during Lessee's tenancy. Lessee shall not apply
the security deposit as rent. If Lessee remains in the Premises after the
expiration date of this Lease, the security deposit will be retained by Lessor
until Lessee moves out of the Premises. Lessor may claim and retain such amount
of Lessee's security deposit as is reasonable necessary to remedy any defaults
of the Lessee in the payment of rent or services, to repair damages to the
Premises caused by the Lessee, replacement of keys and any other outstanding
obligations to Lessor, and Lessor may, at its option and at any time during the
term of this Lease, treat the security deposit as a partial payment applied
toward Lessee's obligation for the Premises during Lessee's last month of
occupancy of the same. The parties expressly agree that the security deposit is
made for all of the aforesaid specific purposes. At all times Lessee shall
maintain a security deposit with Lessor in an amount equal to one (1) times the
monthly rent paid by Lessee for the Premises rent plus
3
<PAGE>
a services deposit of Two Hundred Fifty Dollars ($250.00). Lessor shall bill
Lessee for any such additional security deposit as required. Lessor will refund
Lessee's security deposit, less any offsets as set forth in this paragraph,
approximately thirty (30) days after Lessee's tenancy has terminated and
Lessee's has vacated, returned keys and removed any and all items of personal
property from the Premises.
6. USE Lessee shall use the Premises solely for SALES/MKTG, and for
----------
no other purpose. Lessee shall not do or permit anything to be done in or about
the Suite and Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Suite, or injure or annoy them, or
use or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Lessee cause, maintain or permit any nuisance
in, on or about the Premises. Lessee shall not commit or suffer to be committed
any waste in or upon the Premises. Lessee agrees that Lessee will not offer or
use the Premises to provide to others, services provided by Lessor to Lessor's
other lessees. (I.E. Fax Machines, Copiers, etc.). If Lessee leases one or more
desk spaces, no desk space may be occupied by more than one person. Lessee
agrees that no office shall be occupied by more than two (2) persons without the
prior written consent of Lessor. Only two (2) computers or similar electronic
devices are allowed to be located in each office and not more than one in each
desk space. Lessor will provide all photocopy and fax services for the Premises
and Lessee shall not be permitted to install any fax or photocopy, machines in
the Leased Premises.
7. DEFAULTS AND REMEDIES.
Lessee's Defaults. Any of the following defaults shall constitute a
-----------------
material default by Lessee:
(a) If Lessee fails to make any payment of rent, additional security
deposit or any other payment required to be made by Lessee hereunder, as and
when due.
(b) If Lessee withholds rent, deducts or offsets from rent or services
due hereunder any amount for any reason.
(c) If Lessee occupies, uses or stores any personal property in any
unrented office in the Suite, or stores any personal property in any unrented
desk space or unrented office in the Suite, or stores any personal property in
any common area.
(d) If Lessee fails to observe or perform any of the provisions of
this Lease, where such failure shall continue for a period of ten (10) days
after written notice thereof from Lessor to Lessee.
If Lessee defaults under this Lease, (i) Lessor may terminate this
Lease, (ii) Lessor may recover, in addition to any rent and other charges
already due and payable, all rent for the entire unexpired balance of the stated
term of this Lease and all costs incurred by Lessor to recover such sums from
Lessee, including reasonable attorney's fees and/or Lessor may recover damages
from Lessee. All rights and remedies of Lessor under this Lease shall be
cumulative and in addition to any other rights or remedies available at law or
in equity. No failure by Lessor to exercise any right or remedy or to insist
upon strict performance following a default by Lessee shall constitute a waiver
of such default by Lessor, (iii) Lessor may terminate all services provided
Lessee, including, but not limited to, use of all common areas, e.g., library
and conference room, telephone answering service, photocopying, word processing,
fax and legal research.
8. HIRING LESSOR'S EMPLOYEES. Lessor spends a great deal of time to
hire and train employees for the operation of the Suite and other suites. Lessee
derives the benefit of Lessor's experience in operating the Suite and of such
hiring and training procedures. Lessee realizes the time and expense Lessor
incurs to obtain personnel, and Lessee therefore agrees not to offer or accept
for hire any of Lessor's employees at any time during the term or any extension
or renewal of this Lease. "Lessor's employees" include Lessor's employees during
the period of their employment with Lessor and for a period of one hundred
eighty (180) days thereafter.
4
<PAGE>
Lessor and Lessee have considered the matter and have reasonably endeavored to
estimate the actual damages to Lessor in the event Lessee breaches this
provision and offers or accepts for hire any of Lessor's employees, and both
realizing that it would be impractical or extremely difficult to fix the actual
damage to Lessor resulting from such offer or hiring of Lessor's employees.
Lessor and Lessee therefore agree that if Lessee offers or accepts for hire any
of Lessor's employees at any time during the term or any extension of renewal of
this Lease, or within one hundred eighty (180) days after Lessee moves out of
Lessor's offices. Lessee agrees to pay Lessor the sum of Five Thousand dollars
($5,000.00) for the employee so hired to compensate Lessor for Lessor's loss in
hiring and training said employee. Said sum represents the amount agreed upon by
the parties as Lessor's liquidated damages.
9. INSURANCE. Lessor has blanket liability insurance coverage for the
common areas in the Suite. Lessor's insurance does not cover the Lessee's
Premises or Lessee's property in the Suite and Premises. Lessor shall not be
liable to Lessee, or to any other person, for any damages or business
interruption on account of loss, damage, fire or theft of any personal or
business property, including, but not limited to, property left with the floor
receptionist or telephone operators, door lettering or other property purchased
by, or belonging to, Lessee.
Lessee shall indemnify and hold harmless Lessor from and against any and
All claims arising from Lessee's use of the Premises, or from the conduct of
Lessee's business or from any activity, work or things done, permitted or
suffered by Lessee in the Premises and shall further indemnify and hold harmless
Lessor from and against any and all claims arising from any breach or default in
the performance under the terms of this Lease, or arising from any negligence of
the Lessee or any of Lessee's agents, contractors, visitors, or employees, and
from and against all costs, attorney's fees, expenses and liabilities incurred
in the defense of any such claim or any action or proceeding brought thereon,
and in case any action or proceeding be brought against Lessor by reason of any
such claim. Lessee upon notice from Lessor shall defend the same at Lessee's
expense by counsel satisfactory to Lessor and Lessor's landlord. Lessee, as a
material part of the consideration to Lessor and Lessor's landlord, hereby
assumes all risk of damage to property or injury to persons in the Premises and
Lessee hereby waives all claims in respect thereof against Lessor.
Lessee shall maintain a policy (issued by a company reasonably acceptable
to Lessor) of comprehensive general liability insurance with a combined single
limit of not less than $1,000,000 insuring against all liability of Lessee and
its agents arising out of Lessee's use or occupancy of the Premises and
including contractual liability coverage for the indemnification obligations of
Lessee under this lease. This policy of insurance shall name the Lessor as an
additional insured and shall include cross liability endorsements in favor of
the Lessor. Lessee's insurance shall be primary and non contributing with any
insurance carried by Lessor, and shall contain an endorsement requiring at least
sixty (60) days prior written notice of cancellation to Lessor. Lessee shall
deliver a certificate of insurance to Lessor prior to taking occupancy of the
Premises and shall provide evidence of renewed insurance coverage prior to the
expiration of any policies. No insurance required or obtained by Lessee
hereunder shall limit any liabilities or obligations of Lessee to Lessor under
this Lease.
10. COMMON AREA. All areas not designated for exclusive use of tenants or
available for lease to prospective tenants constitute the Suite's common areas.
Lessee shall have the non-exclusive right of access and use of the common areas
and facilities contained therein. Conference room(s) may be used on a
reservation basis only subject to Lessor's rules and regulations governing use
of the same (see section 9 of exhibit D).
11. MASTER LEASE. Lessee shall have no greater rights to the use and
occupancy of the Suite and Premises than Lessor has with the Building under
Lessor's Master Lease: in particular. Lessee's term under this agreement shall
not be greater than Lessor's term under the Master Lease. Lessee is bound to
Lessor in the same manner as Lessor is bound to the Building with respect to all
standard lease provisions (e.g. eminent domain, destruction of building, etc.).
as well as the rules and regulations of the Building attached hereto as Exhibit
C.
Termination of the Master Lease shall terminate this Lease and all of Lessor's
obligations hereunder. If Lessor's interest is so terminated. Lessee shall, at
the option of Lessor's landlord, attorn to Lessor's landlord and recognize
Lessor's landlord as Lessor under this Lease. Lessee shall execute and deliver
at any time when requested by
5
<PAGE>
Lessor's landlord an instrument to evidence such attornment. Lessee waives the
provision of any law which may give Lessee any right of election to terminate
this Lease or to surrender possession of the Premises by reason of the
termination of the Master Lease. This paragraph does not obligate Lessee in any
way to the Master Lessor of the Building or to anyone else, for anyone else's
rent, or any payment whatever, except as expressly set forth in this Lease.
At any time, Lessor may terminate this Lease upon sixty (60) days written notice
to Lessee in the event that Lessor's interest in the Master Lease is terminated.
In the event Lessor's interest in the Master Lease is terminated. Lessee shall,
at the option of Lessor's landlord, attorn to Lessor's landlord or Lessor's
landlord's designee, and recognize Lessor's landlord or Lessor's landlord's
designee as Lessor under this Sublease. Lessee shall execute and deliver at any
time when requested by Lessor's landlord an instrument to evidence such
attornment. In no event, however, shall Lessor's landlord or Lessor's landlord's
designee be liable for any previous act or omission by Lessor under this
Sublease, or for the return of any advance rental payments or deposits under
such agreements that have not been actually delivered to Lessor's landlord or
Lessor's landlord's designee, nor shall Lessor's landlord or Lessor's landlord's
designee be bound by any modification to any modification to any such agreements
executed without Landlord's consent, or for any advance rental payments in
excess of one month's rent. Lessee waives the provision of any law which may
give Lessee any right of election to terminate this Lease or to surrender
possession of the Premises by reason of the termination of the Master Lease.
12. SUBLETTING. Lessee shall not sublet or assign the Premises or any part
thereof for any period of time. Any subletting or assignment of this Lease which
is not in compliance with the provisions of this paragraph shall be void and
shall, at the option of Lessor, terminate this Lease. In such event, Lessee
shall be liable for any expenses Lessor may incur in regaining possession of the
Premises or so much of the Premises as Lessee may have subleased or assigned
without Lessor's consent
13. NOTICE TO LESSOR. Any notice regarding a breach of this lease or
termination thereof shall be in writing and sent by certified mail or personal
delivery to Barrister Executive Suites, Inc., Attention: Lease Termination
Department, 233 Wilshire Boulevard, Suite 500, Santa Monica, California 90401
(in the case of Lessor), or to Lessee c/o the address of the Premises (in the
case of Lessee). Certified mail notice shall be deemed given forty-eight (48)
hours after the date it is placed, postage prepaid, in a depository for United
States mail, PERSONAL DELIVERY TO THE FLOOR MANAGER, RECEPTIONIST OR TELEPHONE
OPERATOR DOES NOT CONSTITUTE NOTICE TO LESSOR. Either party may provide for a
different address by notifying the other party of said change as provided for
herein.
14. SUBSTITUTION. At any time after the execution of this Lease, Lessor
may substitute for the Leased Premises other premises elsewhere in the suite
comparable to existing spare (the "New Premises") in which event the New
Premises shall be deemed to be the Leased Premises for all purposes hereunder,
provided:
(a) The New Premises shall be similar in area and appropriateness for
Lessee's purposes in Lessor's reasonable determination; and
(b) If Lessee is occupying the Leased Premises at the time of any such
substitution. Lessor shall pay the reasonable out of pocket, third party expense
of moving Lessee, its property and equipment to the New Premises.
15. RULES AND REGULATIONS. Lessee shall observe at all times Lessor's
Rules and Regulations a copy of which is attached hereto as Exhibit D.
16. REPAIRS. The landlord which leases the Suite to Lessor is
responsible for construction of the building, parking garage or lot, and repairs
to elevators, air conditioning, electrical, plumbing and structural supports
under the Master Lease. Lessor is not liable to Lessee by reason of any defect,
inadequacy or insufficiency in same. Lessee may not deduct or offset any amount
from rent due herein because of any problem regarding
6
<PAGE>
construction, access to services, repairs or lack thereof. Lessor will
coordinate any repair or complaint of Lessee. However, any claim by Lessee with
respect thereto shall be made solely against the Building and Lessor hereby
assigns to Lessee, solely for the purpose of making and prosecuting any such
claim, all rights which Lessor has under the Master Lease. Lessor will
coordinate all repairs for dangerous conditions existing in the common areas
within the Suite. Lessee is responsible for, and shall indemnify and hold Lessor
harmless from and against, any damage to persons or property caused by Lessee,
or Lessee's employees, agents, clients, guests or invitees, as well as any
business interruption, lost business or income caused by phone system problems,
long distance and local phone service problems, photocopier problems, and/or fax
machine problems.
17. RIGHT OF ENTRY. If Lessee has given notice to terminate or Lessee is
in default of rental payments, or if Lessee is on a Month-to-Month Lease,
Lessor's employees may show the Premises to prospective tenants between 9:00
a.m. and 6:00 p.m., Monday through Friday. If during the last month of the term
Lessee shall have removed all or substantially all of Lessee's property, Lessor
may immediately allow anyone else to occupy the Premises without relieving
Lessee of liability for rent for that period of time unless Lessor receives
rental income from Lessee's space, in which event such payment shall be credited
against, Lessee's rent obligation for the period of time the space is occupied
by someone else.
18. UTILITIES, SERVICES, MAINTENANCE AND CONSTRUCTION. Under Lessor's
Master lease, the Building provides utilities, services (janitorial, heat and
air conditioning) and maintenance. Janitorial services include carpet vacuuming,
but not shampooing. Heat and air conditioning is provided during generally
recognized business days and hours. Lessee is allowed access to the Premises
twenty-four (24) hours a day, seven (7) days a week subject to the Building's
rules requiring proper identification after normal business hours. Lessor is not
liable to Lessee by reason of any failure to provide or the inadequacy of
utilities, janitorial, heat or air conditioning services, parking, elevators, or
maintenance. Lessor is not responsible for any negligence of the Building's
agents or employees. Lessee may not deduct or offset any amount from rent due
herein because of any problem regarding utilities, heat, air conditioning,
parking, elevators, janitorial services, maintenance services or defective
construction of Premises. Upon request by Lessee. Lessor will write the Building
regarding any complaint by Lessee regarding utilities, heat, air conditioning,
janitorial services, maintenance or construction; however, any claim by Lessee
with respect thereto shall be made by Lessee directly to the Building, and
Lessor hereby assigns to Lessee, solely for the purpose of making and
prosecuting any such claim, all rights which Lessor has against the Building
under the Master Lease. Lessor is responsible for maintaining the common areas
within the Suite, however, Lessor is not responsible for maintaining, repairing
or cleaning the floor covering, wall covering or drapes/window blinds within
Lessee's Premises, other than the normal janitorial service provided by the
Building. Non-recurring operating and capital improvements may be passed on to
the Lessee.
19. ATTORNEY'S FEES. In the event legal proceedings to regain possession
of the Premises or to collect moneys owed are instituted because of Lessee's
failure to pay rent, security deposit, cost of repair of the Premises or to cure
any breach of this Lease by Lessee, the prevailing party shall be entitled to
recover as an element of his cost of suit, and not as damages, reasonable
attorney's fees to be fixed by the court. The "prevailing party" shall be the
party who is entitled to recover his costs of suit, whether or not the suit
proceeds to final judgment. The party not entitled to recover his costs shall
not recover attorney's fees. No sum for attorney's fees shall be counted in
calculating the amount of a judgment for purposes of determining whether a party
is entitled to recover his costs of attorney's fees.
20. ENTIRE AGREEMENT, MERGER AND WAIVER. This Lease Agreement supersedes
and cancels any and all previous negotiations, arrangements, offers, brochures,
agreements or understandings, if any, between the parties hereto. This Lease
Agreement expresses and contains the entire agreement of the parties hereto and
there are no expressed or implied representations, warranties or agreements
between them, except as herein contained. This Lease Agreement may not be
modified, amended or supplemented except by a writing signed by both Lessor and
Lessee. No consent given or waiver made by Lessor of any breach by Lessee of any
provision of this Lease Agreement shall operate or be construed in any manner as
a waiver of any subsequent breach of the same or of any other provision.
7
<PAGE>
21. CONFLICT OF INTEREST. Lessee agrees that a conflict of interest would
be created if Lessee were to represent or act as Legal counsel for the
employees, officers, vendors, contractors, landlords and/or tenants of Lessor.
Therefore, so long as Lessee is a tenant of Lessor, Lessee shall be prohibited
from representing Lessor's employees, officers, vendors, contractors, landlords
and/or tenants in any legal action or lawsuit which involves Lessor, or Lessor's
Managing Agent (if applicable). Failure to comply with this provision shall
constitute an event of default under the Lease and shall be cause for Lessor to
terminate this Lease.
BARRISTER EXECUTIVE SUITES, INC.
NETFLIX.COM
LESSEE LESSOR
/s/ Signature Illegible
VP OF Contact ACQ. _________________________________
Date: 3/31/00 Date: ___________________________
-------
"YOUR SIGNATURE IS ALSO REQUIRED ON PAGE 6 OF EXHIBIT D."
8
<PAGE>
EXHIBIT D
---------
BARRISTER EXECUTIVE SUITES, INC.
RULES AND REGULATIONS
ATTACHED AND MADE A PART OF LEASE
Lessor has adopted these Rules and Regulations for the purpose of assuring
Lessee of the quiet enjoyment of the Suite. Lessee agrees to abide by the Rules
and Regulations so long as Lessee remains in occupancy of the Premises
1. COMMON AREAS. The sidewalks, hallways, passages, exits, entrances,
elevators, escalators, and stairways shall not be obstructed by Lessee or used
by him for any purpose other than for ingress to and egress from the Premises.
The halls, passages, exits, entrances, escalators and stairways are not for the
use of the general public and Lessor shall in all cases retain the right to
control and prevent access thereto by all persons whose presence in the judgment
of Lessor shall be prejudicial to the safety, character, reputation and
interests of the suite and its lessees, provided that nothing herein contained
shall be construed to prevent such access to persons with whom Lessee normally
deals in the ordinary course of such Lessee's business unless such persons are
engaged in illegal activities.
2. DISPLAY OF SIGNS. No sign, placard, picture, name, advertisement or
notice, visible from the exterior of the Premises shall be inscribed, painted,
affixed or otherwise displayed by Lessee on the Premises or any part of the
building without the prior written consent of Lessor, and Lessor shall have the
right to remove any such sign, placard, picture, name, advertisement or notice
without notice to and at the expense of Lessee. Lessor's consent, whether before
or after the execution of the Lease, shall in no way operate as waiver or
release of any of the provisions hereof or of the Lease, and shall be deemed to
relate only to the particular sign, placard, picture, name, advertisement or
notice so consented to by Lessor and shall not be construed as dispensing with
the necessity of obtaining the specific written consent of Lessor with respect
to any other such sign, placard, picture, name, advertisement or notice.
3. DIRECTORY. Subject to the Building's rules and regulations. Lessee may
have Lessee's business name on the Building's lobby and parking-level
directories. Lessor will order the installation of directory listings for the
name(s) designated as "Lessee" on this Lease. Lessee, shall pay the Lessor's
prevailing charge for any Directory Listings. If Lessee desires a different
listing, additional listings, or does not want a name on the directories. Lessee
will note that fact at the bottom of this page and at the discretion of Lessor
and the Building, such additional listings may be provided.
4. DOOR LETTERING. Lessee may, at Lessee's expense, have the occupant's
name placed on Lessee's office door in the uniform size, style, place and manner
selected by Lessor. If Lessee requires door signs, Lessee shall pay Lessor for
same at Lessor's prevailing rate. Lessee shall not install a title, company name
or anything else on the outside of Lessee's door or any other location visible
from the common area. For attorneys, a law firm name on the door is permissible,
so long as it does not exceed one line. Lessor recommends the use of a single
occupant's name, or no name at all. If Lessee's office is within a private
suite. Lessee shall not place any name on the entrance door to the private suite
unless Lessee has leased the entire mini-suite, or each office and desk space
within that private suite is occupied and Lessee obtains written consent of all
other tenants within that private suite. If at any time Lessee does not lease an
entire mini-suite or private suite and Lessee does not have the consent of all
other occupants of the mini-suite or private suite, including Lessor's in the
event a vacancy exists. Lessee shall remove, at its own expense, all lettering
from the entrance door to the mini-suite or private suite. If Lessee's door
lettering is not installed by the office of the building or the company
recommended by Lessor, or if the next Lessee does not immediately install door
lettering. Lessee is responsible for the cost of professional removal of
Lessee's door lettering as well as any damage to the door caused by the removal
of Lessee's door
1
<PAGE>
lettering. If any co-Lessee complains that Lessee's door lettering is not in
keeping with the provisions herein. Lessee will after at Lessee's expense the
door lettering to comply with these provisions.
5. KEYS. Lessor will supply one key to the door of each office or desk
area (including one key for each existing desk lock if the former tenant
returned the key) rented by Lessee. If Lessee does not receive a door key for
space rented within 5 days after the commencement date of this Lease. Lessee
shall send Lessor a certified letter with return receipt asking for the key(s)
and if such letter is not received by Lessor. Lessee will be deemed to have
received the key(s) and Lessee will be responsible for replacing the key(s) when
Lessee moves out. Lessee will pay the Lessor's prevailing charge for elevator
keys, security cards or keys to enter the Building after normal business hours,
or additional office or desk area keys. Lessor is not responsible for changing
any lock for any reason including, but not limited to, the master key kept by
Lessor's employees, or any other key which opens Lessee's space, being stolen,
lost or misplaced. Lessee understands that Lessor is not liable for thefts.
Subject to the approval of the Building manager. Lessee may install a deadbolt
lock on or change the tumbler on any door(s) leading to an area within which
Lessee has leased all the space. Deadbolts must be installed above the doorknob.
with precisely 7 1/2" between the center of the knob and the center of the dead
bolt. If Lessee chooses to change the tumbler or to install a dead bolt. Lessee
realizes that maintenance personnel will not be able to enter and clean Lessee's
office(s). Lessee shall be responsible for the return of all keys to the
Premises. In the event Lessee fails to do so. Lessee shall pay Lessor for the
cost of re-keying all doors to the Premises. If Lessee requires Lessor to admit
Lessee into the Premises, Lessee will be assessed Lessor's standard charge for
admitting Lessee for each occurance after the first.
6. CARPETING AND WALL COVERING. Lessee accepts the carpeting, flooring,
and walls on an "as is" basis. Lessee shall return the carpeting, flooring,
walls, and wall covering to Lessor in their installed condition less normal wear
and tear. Lessee may not make changes in floor covering or wall covering without
the prior written consent of Lessor. Upon termination of the Lease, whether upon
expiration of the term or sooner. Lessee agrees to pay Lessor One Hundred
Dollars ($100,00) per leased office and Fifty Dollars ($50,00) per leased desk
space to cover the painting and cleaning costs for each such space. The
applicable amounts for such painting and cleaning costs shall be deducted from
Lessee's security deposit should Lessee fail to pay Lessor for same upon lease
termination.
DRAPES (OR VENETIAN BLINDS). Lessor shall provide drapes or blinds
(whichever is standard for the Building) in exterior window offices (excluding
offices with atrium exposures) at no expense to Lessee. Lessor is not obligated
to clean or repair the drapes (or blinds). Lessee shall return same to Lessor in
their present condition less normal wear and tear. As required by the Building,
Lessee must use the building standard drapes or blinds. Lessee may install
overdrapes (visible only from within the office) in the texture and color of
Lessee's choice, which must be removed at lease termination. If the Building has
special sun-resistant glass treatment and does not provide drapes or blinds for
other floors in the building. Lessor shall not be required to provide drapes or
blinds to Lessee.
8. IMPROVEMENTS. Lessee may make cosmetic improvements within the
office(s) and/or desk space(s) leased herein subject to Lessor's prior written
approval and provided that Lessee pays for any such improvements, and further
provided said improvements do not affect the structural integrity of the
Building or violate Lessor's Master Lease. All improvements (other than floor
covering or wall covering changes) must be done by the Building's general
contractor or a contractor of Lessee's choice with the prior written permission
of the Office of the Building and Lessor. Lessee may remove any improvements
paid for by Lessee provided that Lessee repairs any holes, gaps or other damage
to walls, ceiling, flooring or their coverings. Lessee will remove any
improvements (other than additional, normal-height electrical outlets or shelves
within a cabinet or closet occupied by Lessee) installed by Lessee and restore
the Premises to the condition prior to Lessee's occupancy if requested to do so
by Lessor. Lessee shall not remove any improvement for which Lessor contributed
payment without Lessor's prior written consent. During the restoration period,
Lessee shall pay rent to Lessor as provided herein as if said space were
otherwise occupied by Lessee.
2
<PAGE>
9. CONFERENCE ROOM. Lessee may use the conference room(s) on a
reservation basis only. Lessee may not have a standing or permanent reservation
of the conference room. Lessee will not reserve the conference room on more than
3 occasions in any 30-day period nor may Lessee reserve use of the conference
room for an entire day more than one day at a time, unless Lessor's floor
manager confirms that such excess use does not conflict or interfere with any
other co-tenant's reasonable pro rata use of the conference room. Excess usage
will be charged to Lessee at Lessor's prevailing rate. Lessee understands the
conference room is for meetings, depositions or other conferences and is not to
be used for lunches or any other purpose which causes loud noise, offensive
odors or any other environmental situation which disturbs other tenants. Use of
the conference room at any other suite operated by Lessor is permitted one time
in any 30-day period on a reservation basis. Such usage is limited to normal
business hours when the floor manager is present.
10. LIBRARY. Lessor will provide access to a Law Library, consisting of
one set of each major multi-volume publication (other than desk or specialized
sets) used most frequently by most lawyers as determined by Lessor's experience
(said law library may be comprised of CD-ROM disks or books). Lessee shall not
mark, mar, tear or otherwise deface any book.
Lessee shall refrain from smoking, eating and drinking in the library and
shall be bound by the rules made by Lessor with respect to the use of the
library, including but not limited to the following:
(a) Lessee will return to the shelf each book that Lessee removes
from the shelf.
(b) Lessee will complete an "out card" for each book removed from the
library.
(c) Lessee will not keep any book out of the library overnight.
Lessor is not responsible for repurchasing lost, stolen or missing books or
supplements.
If the number of lost, stolen or missing books is unusually large, as
determined by Lessor's experience in running numerous law suites. Lessor may
lock the library after normal business hours or institute other security
measures Lessor deems appropriate, including inspection of all offices in the
Suite to locate missing books.
Lessee realizes that every book or supplement needed by Lessee will not
always be in the library as some books or supplements may be missing, stolen or
have been removed by tenants. Lessee acknowledges that Lessor is not responsible
to Lessee or any other persons in the event that research by, or on behalf of,
Lessee is inadequate or incomplete because some books or supplements have not
been updated, have been removed, or are missing or stolen. Lessor may at any
time and without prior notice to Lessee, remove the on-site library: however.
Lessee shall have the right to use the library of any other law suite operated
by Lessor but may not remove any book from said library. The Law Library is
provided for the convenience of the tenants and Lessor can not be held
responsible for any inadequacy therein.
11. TELEPHONE. MAIL SORTING AND RECEPTION. Lessor agrees to provide
standard telephone answering, mail sorting and reception services as reasonably
required by Lessee from 9:00 a.m. to 5:30 p.m., Monday through Friday, national
and/or state holidays excepted. Lessee shall be responsible for its own
telephone expense, and the installation and monthly service charges, if any,
from the telephone company by reason of Lessee's lines being connected to the
reception desk and telephone room consoles. Any telephone expense billed to
Lessor (including any telephone company double charge) shall be paid or
reimbursed by Lessee to Lessor. Lessee agrees to use only the telephone
equipment and services of the vendor authorized by Lessor if Lessee wishes to
connect its telephones lines to Lessor's switchboard and have Lessor answer
Lessee's telephone lines. Lessee may not install more than two incoming lines on
Lessor's switchboard for each office and one incoming line for each desk space,
and all such lines are to be answered with the same greeting. Telephone
equipment shall only be moved by Lessor or its authorized vendor and Lessee
shall be responsible to pay all costs of such moves at the current rates charged
by Lessor's authorized vendor.
3
<PAGE>
In the event that Lessee receives excessive incoming telephone calls
through Lessor's switchboard (Greater than 1,000 calls per month per office
rented will be considered excessive). Lessor may impose a reasonable charge for
such excessive usage or require Lessee to disconnect its telephone lines from
Lessor's switchboard and have Lessee answer its own telephone lines. Lessee is
encouraged to have a private line that bypasses Lessors switchboard for
important clients & personal callers so as to help ensure that Lessee does not
receive excessive calls through Lessor's switchboard.
Lessee is required to maintain voice-mail access so that Lessor's telephone
operators may route Lessee's callers that need to leave a message into said
voice-mail. Should Lessor's operators be required to take a paper message for
any reason. Lessee agrees to pay Lessor's standard charge for each such message
written.
Should Lessee choose not to be connected to Lessor's switchboard and not
have Lessor answer its telephones. Lessee may use its own telephone equipment
provided Lessee obtains said equipment from a telephone vendor approved by
Lessor. Lessee acknowledges that the telephone cabling which currently exists in
the suite is the property of Lessor and Lessor may have provided the rights to
use of the existing cabling to its authorized telephone vendor. Therefore, if
Lessee chooses to use its own telephone equipment. Lessee may be charged a
monthly fee by Lessor or its authorized telephone vendor for use of the existing
telephone cabling. In the event Lessee replaces Lessor's cabling with Lessee's
own vendor's cabling, Lessee shall reimburse Lessor for any expense Lessor's
phone vendor assesses to switch out its cabling and to restore it after Lessee
vacates the Premises.
Lessee agrees that Lessor is not responsible for the acts or omissions of
Lessor's telephone vendor. Lessor is not responsible for telephone equipment
breakdowns, and Lessee understands that telephone service may not always be
continuous. Further, Lessee agrees to indemnify, release, and hold Lessor
harmless from any loss damage, claim or liability arising out of or in
connection with any telephone equipment failure, including lost business or
income. Services offered by Lessor are subject to human, electrical and
mechanical error, failure, or illness which may result in the delay or
discontinuation of these services. Lessee acknowledges that Lessor is not
responsible for telephone equipment breakdowns and that telephone service may
not always be continuous.
If the telephone company does not install Lessee's phone on or before the
commencement date of this Lease, the commencement date shall not be extended,
nor shall rent be abated since Lessee is responsible for insuring that Lessee's
telephone lines are installed in Lessee's office and connected to Lessor's
central call director. If Lessee desires a floor telephone outlet or any other
telephone outlet not already provided. Lessee will pay the Building's relocation
charge and any additional conduit and electrical work charges.
Lessee recognizes that telephone answering, mail sorting and reception
services are never perfect and that all receptionists and telephone operators
make mistakes. Lessor strives to provide excellent telephone answering, mail
sorting and reception services, however it will not be error-free. Lessee may
perform telephone answering and mail service directly or through Lessee's
employees. Lessee agrees that Lessor shall not be liable for any loss of
business or damages of any sort occurring through or in connection with or
incidental to the furnishing of, or the failure to furnish, telephone answering,
mail sorting or reception service. Further, Lessee agrees to indemnify, release,
and hold Lessor harmless from any loss, damage, claim or liability arising out
of or in connection with any telephone answering, mail sorting and/or reception
service provided or not provided by Lessor's employees to Lessee or to any
caller, visitor or associate of Lessee, or mail or deliveries of any goods or
merchandise intended for Lessee. IN THE EVENT THIS LEASE TERMINATES, OR LESSEE
IS IN DEFAULT HEREUNDER, LESSOR MAY, AT ITS ELECTION, REFUSE TO PROVIDE
TELEPHONE ANSWERING SERVICE, LIBRARY AND CONFERENCE ROOM USAGE, PHOTOCOPYING,
WORD PROCESSING, FAX AND LEGAL RESEARCH AND LESSOR SHALL NOT BE IN BREACH OF ANY
OF ITS OBLIGATIONS HEREUNDER. NOR SHALL SUCH REFUSAL BE DEEMED AN EVICTION OF
LESSEE UNDER THIS LEASE.
4
<PAGE>
Lessor provides open message and mail slots to all tenants. Lessee
acknowledges that Lessor is not responsible for loss or theft of messages or
mail. Lessee may install at Lessee's expense a locking cover over the mail slot
or one or both sides of the message slot provided that Lessee will be
responsible for any damage to said mail or message slot as well as for restoring
the slot to its original condition when Lessee moves out. Lessee understands
that any covered slot will not be in alphabetical order and will be at the
beginning or end of the row of slots at the telephone operator's discretion.
Lessee further understands that a key must be given to the telephone operators
in order for them to insert mail and/or messages into the respective slots, or
the covers must be designed with a small opening for that purpose. Lessor's sole
obligation to answer telephones or sort mail shall be limited to Lessee's name
or associates of Lessee occupying individual offices. Services in addition to
the foregoing shall be subject to a charge to be determined by Lessor.
Upon termination of this Lease. Lessor will write on all mail "Return to
Sender" and return to the post office. Lessor will not store mail nor place a
forwarding address on it unless Lessee pays the then-prevailing charge for said
service.
12. PHOTOCOPYING AND FAX. Lessor will provide all photocopy and fax
services for the Premises and Lessee shall not be permitted to install any fax
or photocopy machines in the Leased Premises. If Lessee desires to use these
services. Lessee shall execute separate services agreements for same, and
charges arising from these services shall appear on Lessee's monthly statements
and shall be paid for together with the monthly rent for the Premises. Lessee
recognizes that photocopy and fax machines do break down and that repair persons
do not come over promptly. Lessee acknowledges that Lessor is not responsible
for machine breakdowns.
13. PARKING. Lessee and Lessee's visitors may have validated and monthly
automobile parking (if available) in the Building's parking facilities, if any,
according to the Building's rules and regulations. Lessor is under no obligation
to provide parking. Lessee's failure to obtain parking shall in no way affect
Lessee's obligation to pay rent.
14. PROFESSIONAL CONDUCT. If Lessee conducts himself or his business in
such a manner that reflects unfavorably on them or the Suite. Lessor may
terminate this Lease on 15 days notice to Lessee and any rent paid in advance
will be returned to Lessee on a pro rata basis. Lessor further reserves the
right to exclude, expel from the Suite or terminate the Lease of (on 5 days
notice to Lessee) any person who, in the sole judgment of Lessor, is abusive to
Lessor's employees, tenants or visitors to the Premises, is intoxicated or under
the influence of liquor or drugs, or who shall in any manner do any act in
violation of any of these rules and regulations or applicable laws.
15. SMOKING. Smoking is expressly prohibited in all areas of the Suite.
5
<PAGE>
16. AMENDMENTS. Lessor may, without further notice, make changes or adopt
any such other and further rules and regulations which in its sole judgment may
be necessary for the proper operation of the Suite. Lessee agrees to abide by
all such rules and regulations hereinabove stated and any additional rules and
regulations which are adopted. So long as Lessee is not in violation of its
obligations under the Lease or these rules and regulations. Lessor shall observe
the rules and regulations.
BARRISTER EXECUTIVE SUITES, INC.
NETFLIX.COM
LESSEE LESSOR
/s/ Signature Illegible
VP of Contact Acquisition ____________________________________
Date: 3/31/00 Date: ______________________________
-------
"YOUR SIGNATURE IS ALSO REQUIRED ON PAGE S OF THE LEASE"
6
<PAGE>
EXHIBIT A
---------
[CHART OMITTED]
<PAGE>
EXHIBIT B
---------
NOT APPLICABLE TO THIS LEASE
<PAGE>
EXHIBIT C
---------
BUILDING RULES AND REGULATIONS
1. Security Landlord may from time to time adopt appropriate systems and
procedures for the security or safety of the Building, any persons
occupying, using or entering the same, or any equipment, furnishings or
contents thereof, and Tenant shall comply with Landlord's reasonable
requirements relative thereto.
2. Locks Landlord may from time to time install and change locking mechanisms
on entrances to the Building, common areas thereof, and the Premises, and
(unless 24 hour security is provided by the Building) shall provide to
Tenant a reasonable number of keys and replacement therefor to meet the
bona fide requirements of Tenant. In these rules "keys" include any device
serving the same purpose. Tenant shall not add to or change existing
locking mechanisms on any door in or to the Premises without Landlord's
prior written consent. If with Landlord's consent, Tenant install lock(s)
incompatible with the Building master locking system:
(a) Landlord, without abatement of Rent, shall be relieved of any
obligation under the Lease to provide any service to the affected
areas which require access thereto.
(b) Tenant shall indemnify Landlord against any expense as a result
of forced entry thereto which may be required in an emergency,
and
(c) Tenant shall at the end of the Term and at Landlord's request
remove such locks at Tenant's expense.
3. Return of Keys At the end of the Term, Tenant shall promptly return to
Landlord all keys for the Building and for the Premises which are in
possession of Tenant.
4. Windows Tenant shall observe Landlord's rules with respect to maintaining
window coverings at all windows in the Premises so that the Building
presents a uniform exterior appearance, and shall not install any window
shades, screens, drapes, covers or other material on or at any window in
the Premises without Landlord's prior written consent. Tenant shall take
reasonable steps to provide that window coverings are closed on all windows
in the Premises while they are exposed to the direct rays of the sun.
5. Repair, Maintenance, Alterations and Improvements Tenant shall carry out
Tenant's repair, maintenance, alterations and improvements in the Premises
only during times agreed to in advance by Landlord and in a manner which
will not unreasonably interfere with the rights of other tenants in the
building.
6. Water Fixtures Tenants shall not use water fixtures for any purpose for
which they are not intended, nor shall water be wasted by tampering with
such fixtures. Any cost or damage resulting from such misuse by Tenant
shall be paid for by Tenant.
7. Personal Use of Premises The Premises shall not be used or permitted to be
used for residential, lodging or sleeping purposes or for the storage of
personal effects or property not required for business purposes.
8. Heavy Articles Tenant shall not place in or move about the Premises without
Landlord's prior written consent any safe or other heavy article which in
Landlord's reasonable opinion may damage the Building, and Landlord may
designate the location of any heavy articles in the Premises.
9. Carpet Pads In those portions of the Premises where carpet has been
provided directly or indirectly by Landlord, Tenant shall at its own
expense install and maintain pads to protect the carpet under all furniture
having casters other than carpet casters.
1
<PAGE>
10. Bicycles, Animals Tenant shall not bring any animals or birds into the
Building, and shall not permit bicycles or other vehicles inside or on the
sidewalks outside the Building except in areas designated from time to time
by Landlord for such purposes.
11. Deliveries Tenant shall ensure that deliveries of material and supplies to
the Premises are made through such entrances, elevators and corridors and
at such times as may from time be designated by Landlord, and shall
promptly pay or cause to be paid to Landlord the cost of repairing any
damage in the Building caused by any person making such deliveries.
12. Furniture and Equipment Tenant shall ensure that furniture and equipment
being moved into or out of the Premises is moved through such entrances,
elevators and corridors and at such times as may from time to time be
designated by Landlord, and by movers or a moving company approved by
Landlord, and shall promptly pay or cause to be paid to Landlord the cost
of repairing any damage in the Building caused thereby.
13. Solicitations Landlord reserves the right to restrict or prohibit
canvassing, soliciting or peddling in the Building.
14. Food and Beverages Only persons approved from time to time by Landlord may
prepare, solicit orders for, sell, serve or distribute foods or beverages
in the Building, or use the elevators, corridors or common areas for any
such purpose. Except with Landlord's prior written consent and in
accordance with arrangements approved by Landlord, Tenant shall not permit
on the Premises the use of equipment for dispensing food or beverages or
for the preparation, solicitation of orders for, sales, serving or
distribution of food or beverages.
15. Refuse Tenant shall place all refuse in proper receptacles provided by
Tenant at its expense in the Premises or on receptacles (if any) provided
by Landlord for the Building, and shall keep sidewalks and driveways
outside the Building, and lobbies, stairwells, ducts and shafts of the
Building, free of all refuse.
16. Obstructions Tenant shall not obstruct or place anything in or on the
sidewalks or driveways outside the Building or in the lobbies, corridors,
stairwells or other common areas of the Building, or use such locations for
any purpose except access to and exit from the Premises without Landlord's
prior written consent. Landlord may remove at Tenant's expense any such
obstruction or thing (unauthorized by Landlord) without notice or
obligation to Tenant.
17. Dangerous or Immoral Activities Tenant shall not make any use of the
Premises which involves the danger of injury to any person, nor shall the
same be used for any immoral purpose.
18. Proper Conduct Tenant shall not conduct itself in any manner which is
inconsistent with the character of the Building as a first-quality building
or which will impair the comfort and convenience of other tenants in the
Building.
19. Employees, Agents and Invitees In these Rules and Regulations, Tenant
includes the employees, agents, invitees and licensees of Tenant and others
permitted by Tenant to use or occupy the Premises.
20. Housekeeping Tenant shall prevent paper, books, magazines and other
obstructions from being placed on heat, ventilating and air conditioning
convectors and any other interference with the heat, ventilating and/or air
conditioning system within the Premises.
21. Energy Conservation Tenant shall make every effort to practice energy
conservation within the Premises and will cooperate with Landlord in
establishing and implementing such conservation programs as Landlord may
from time to time develop.
2
<PAGE>
Executive Suites
RENTAL APPLICATION
PLEASE PRINT CLEARLY OR TYPE AND FILL IN ALL REQUESTED INFORMATION, THANK YOU.
Applicant Name (As it will appear on the Lease agreement) NetFlix.com, Inc.
----------------
Is this business a (circle one) Corporation or Partnership or Sole
--
Proprietorship? Federal Tax ID # 77-0467272
----------
If Corporation: State of Incorporation Delaware Date incorporated 8/29/97 Corp.
-------- -------
ID # _____
Type of Business DVD Rental
----------
Date Business Established ___________________ Current Phone #408-399-3700
------------
PLEASE PROVIDE COMPLETE INFORMATION FOR THE INDIVIDUAL(S) WHOM WILL BE EXECUTING
--------------------------------------------------------------------------------
THIS LEASE AND SIGNING AS THE GUARANTOR:
---------------------------------------
________________________________________________________________________________
Name Title Home Address City State Zip Code
________________________________________________________________________________
Social Security # Home Telephone # Work Telephone #
________________________________________________________________________________
Title Home Address City State Zip Code
________________________________________________________________________________
Home Telephone # Work Telephone #
LANDLORD REFERENCES
-------------------
Current Business Address 750 UNIVERSITY AVENUE, LOS GATOS, CA. 95032
-------------------------------------------
Lessor HI/FN Lessor's Phone # & Contact(408)399-3500 - Dave Merrick
----- ----------------------------
Monthly Rent 36,623 Initial Term of Lease 24 mo. Length of Occupancy 14 mo.
------ ----- -----
Reason for Leaving N/A
---
BANK ACCOUNT INFORMATION
------------------------
________________________________________________________________________________
Bank Name Address Phone # and Contact Account Number
________________________________________________________________________________
Bank Name Address Phone # and Contact Account Number
Has this business, its officers, partners or owners ever been delinquent in any
payment of any financial obligation? If yes, please explain:
________________________________________________________________________________
The information on this application is true and correct to the best of my/our
knowledge. I/We hereby authorize Barrister Executive Suites, Inc. or its agents
to obtain either a consumer or investigative credit report and to verify all
information by contracting the sources listed herein, or any other sources
available. I/We understand that information
<PAGE>
that does not verify, or cannot be verified, may result in this application not
being approved.
OFFICERS OR PARTNERS (NAMED ABOVE) MUST SIGN BELOW
--------------------------------------------------
NAME ____________________________ TITLE VP ?? DATE 3/31/00
----- -------
NAME ____________________________ TITLE ?? DATE 4/3/00
-- ------
Barrister Use Only
Property #______ Space #'s__________ Term _________ Rate____________ Cost or
Teaser_______
Special
Circumstances___________________________________________________________________
Broker referral (yes or No)__________ Tenant referral (Yes or No)___________ TI
work_______
<PAGE>
Los Angeles, CA 90045
(310) 258-8019
Fax (310) 258-8001
BUSINESS OFFICE MANAGEMENT, LLC.
SERVICE AND EQUIPMENT RENTAL AGREEMENT
GENERAL INFORMATION:
NetFlix.com, Inc. Main Phone No.: (408) 399-3700
----------------- --------------
Company Name
750 University Avenue Billing Contact: ______________________
---------------------
Address
Los Gatos, Ca. 95032-7606 Contact Phone No. (408)________________
---------------------------
City State Zip Code CIMOY FURIMO
PRODUCTS/SERVICES:
<TABLE>
<CAPTION>
Monthly Charges Installation Fee Refundable Deposit
Qty Qty Qty
--- --- ---
<S> <C> <C> <C>
Telephone (1 DID & 1 Voice Box) 1 x $100= 100 1 x $225= 225 1 x $100= 100
- --- - --- - ---
Add'l Telephone (1 Voice Box & ext(s)) ___ x $100=___ ___ x $75=___ ___ x $100=___
Facsimile/Modern/extra DID line 1 x $25= 25 1 x $75= 75
- -- --
Additional Voice Mail Box ___ x $15=___ ___ x $25=___
Telephone/Mail Service line charge ___ x $25=___ ___ x $75=___
(1 Voice Mail Box & 1 DID)
COLUMN TOTAL: 125 300 100
--- --- ---
TOTAL AMOUNT DUE: 525.00
------
</TABLE>
* All adds, moves and changes after initial installation will be billed at then
prevailing rates with a one hour minimum charge.
AGREEMENT:
----------
I/WE HEREBY AGREE TO PAY BUSINESS OFFICE MANAGEMENT, LLC EACH OF THE CHARGES
LISTED AS WELL AS ANY CHARGES ON THE DATE OF INSTALLATION OR IN THE FUTURE. I/WE
FURTHER AUTHORIZE "BOM" TO ACT AS MY/OUR AGENT IN DEALING WITH LOCAL EXCHANGE
CARRIERS, OTHER COMMON CARRIERS, RESELLER, CONSULTANTS AND EQUIPMENT VENDORS.
THIS AUTHORIZATION SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL FURTHER WRITTEN
NOTICE
/s/ Signature Illegible
By: _______________________ Date: 4/3/00
------
Name (Please Print): W. BARRY McCARTHY JR Title: CFO
-------------------- ---
<PAGE>
TERMS AND CONDITIONS OF BOM WATS SERVICE
AND EQUIPMENT RENTAL AGREEMENT
This Agreement shall be effective, and its obligations commence, upon the date
of execution by the parties. If either party desires to cancel this Agreement it
shall give the other party written notice of its intent to cancel at least
thirty (30) days in advance of the desired cancellation date. Upon termination
of this Agreement. Client shall vacate the equipment in good repair (ordinary
wear and tear resulting from the proper use thereof alone excepted) by
permitting BOM to enter Client's premises for the sole purpose of de-installing
and repossessing said equipment.
The equipment as outlined on the reverse side of this Agreement shall be kept at
the location specified, also on the reverse of this Agreement and shall not be
removed therefrom without BOM's prior written consent. Client shall use the
equipment in a careful manner and shall comply with all laws relating to its
possession, use and maintenance. BOM will keep the equipment in good repair and
furnish all parts, mechanisms and devices required therefor. Client agrees that
only BOM provided equipment will be used in Client's offices, and that Client
shall not make any alterations, additions or improvements to the equipment nor
change any outlets or jacks without the prior written consent of BOM. Client is
responsible for loss or damage to any or all equipment, excepting ordinary wear
and tear resulting from the proper use thereof, and no such loss or damage of
any or all equipment shall relieve Client of the obligation to pay rent or any
other obligation under the Agreement.
Payment for balances shall be due BOM from the Client within ten (10) days from
the invoice date. Payments received after the due date shall result in interest
charges of one and one half percent (1 1/2%) per month, and entitle BOM to
commence collection action as defined below. BOM does not waive remedies for
collection and reserves the right to enlist the assistance of Client's executive
suite management and/or ownership in collection of any outstanding balances due.
BOM" agreement with Barrister Executive Suites, Inc., allows Barrister Executive
Suites, Inc. to deduct any outstanding balance(s) due BOM, at termination, from
Client's security deposit with Barrister Executive Suites, Inc. Client is hereby
notified that BOM may instruct Barrister Executive Suites, Inc. to take such
action for any balance due upon lease termination.
If payment has not been received by the due date, or any extension thereof
permitted at its option for all charges billed to Client, then BOM may, at its
sole discretion and without prior notices, terminate this Agreement in part of
in whole. BOM shall have the right, without notice or service, to remove any and
all equipment from Client without legal process. BOM reserves the right to
collect attorney's fees and any and all litigation costs incurred by BOM in the
collection of unpaid accounts and repossession of any and all equipment. BOM
further reserves the right as security for the services described herein to
require a cash deposit of a minimum of one (1) months' projected usage. However,
if credit worthiness has been proven and maintained BOM may waive this
requirement.
Client shall release BOM from any and all claims, actions, proceeding, expenses,
damages and liabilities, including attorney's fees, arising in connection with
the provision of BOM services, including any loss or damages or cost caused by
the failure or breakdown of said service or equipment. Any damages of any kind
to Client for interruption in service is limited to refund of BOM charges for
the period of service outage. The parties' obligations under this Agreement are
subject to, and neither party shall be liable for, delays, failures to perform,
or damage, or damage or destruction or malfunction of any equipment or any
consequences thereof caused or occasioned by, or due to fire, flood, water, the
elements, labor disputes and shortages, utility curtailments, power failures,
explosions, and disturbances, governmental requisition, shortages of equipment
or supplies, unavailability of transportation, acts or omissions of third
parties. or any other cause beyond the parties' reasonable control. Further, BOM
makes no warranty, whether expressed or implied, with respect to the services
provided hereunder and expressly disclaims any warranty of merchantability, or
warranty of fitness for a particular purpose, with the exception of BOM's proven
negligence.
Upon prior written notice of consent is obtained from a party herein, the other
party will keep in the strictest confidence all information identified by the
under party as confidential, or which from the circumstance and adherence to
common business practices, in good faith ought to be treated as confidential,
such as but not limited to, information relating to parties' products, services,
methods of operations, prices lists, customer lists, or other information of the
business affairs of a party, its parent company, or its affiliated or subsidiary
companies, which the party may acquire or become familiar with in connection
with or as a result of the performance of this Agreement. It is hereby
understood that should any such confidentiality be breached, such breach may
cause BOM significant damages for which Client would be liable.
<PAGE>
The failure of either party hereto to enforce or insist upon compliance with any
of the provisions of the Agreement, or the waiver thereof, in any instance,
shall not be constructed by the either party as a general waiver or
relinquishment of any other provision of this Agreement, but the same shall,
nonetheless be and remain in full force and effect.
This Agreement shall be, in all respects governed by and construed and enforced
in accordance with the laws of the State of California. County of Los Angeles,
including all matters of construction, validity, and performance. If any
provision of this Agreement or its application shall be held invalid, illegal,
or unenforceable in any respect by a court of competent jurisdiction, the
validity, legality and enforceability of all other provisions and applications
hereof shall not in any way be affected or impaired. Furthermore, client
acknowledges that it has elected to be served by a private utility, that it is
not a member of the general public or a portion thereof seeking protection by
the Public Utilities Commission, and that it waives any right to such
protection.
Client will not assign this Agreement nor assign any interest in or to any of
the equipment therein to any person or persons without the prior written consent
of BOM. BOM reserves the right to assign this Agreement or any interest in or to
any of the equipment therein at its sole discretion. Further, Client understands
that any telephone numbers assigned to Client are not transferable when service
is discontinued and are the sole property of BOM. Client may not place a display
advertisement in the "yellow pages" of any telephone directory or order a
calling card or telephone directory under the assigned telephone number without
the prior written consent of BOM.
This Agreement superseded all prior agreements, promises, understandings,
statements, representations, warranties, indemnities and covenants and all
inducements to the making of this Agreement relied upon by either party hereto,
whether written or oral, between the parties hereto with respected the subject
matter hereof and embodies the parties' complete and entire agreement with
respect to the subject matter hereof. No statement of agreements, oral or
written, made before the execution of this Agreement shall vary or modify the
written terms hereof in any way whatsoever. The terms and conditions of this
Agreement are subject to future changes, additions or modification of service as
requested by Client and approved by Business Office Management, LLC.
Rates are subject to change by Business Office Management at any time,
without notice
___________________________________ ___________________________________
BY: CLIENT BY: BUSINESS OFFICE MANAGEMENT
___________________________________ ___________________________________
NAME TITLE NAME TITLE
___________________________________ ___________________________________
DATE DATE
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.7
<SEQUENCE>10
<DESCRIPTION>LEASE AGREEMENT DATED AUGUST 11, 1999
<TEXT>
<PAGE>
EXHIBIT 10.7
LEASE AGREEMENT
(NNN R&D)
BASIC LEASE INFORMATION
Lease Date: August 11, 1999
Landlord: LINCOLN-RECP OLD OAKLAND OPCO, LLC,
a Delaware limited liability company
Landlord's Address: c/o Legacy Partners Commercial, Inc.
101 Lincoln Centre Drive, Fourth Floor
Foster City, California 94404-1167
Tenant: NetFlix.com,
a Delaware corporation
Tenant's Address: Before Commencement Date:
750 University Avenue
Los Gatos, California 95032-7606
Attention: Barry McCarthy
After Commencement Date:
750 University Avenue
Los Gatos, California 95032-7607
Attention: Barry McCarthy
Premises: Approximately 31,830 rentable square feet as shown
on Exhibit A
---------
Premises Address: 2219 Old Oakland Road
San Jose, California 95131-1402
Building: Approximately 55,976 rentable square feet
Lot (Building's tax parcel): APN 237-01-044
Park: Approximately 138,366 rentable square feet
Term: November 1, 1999 ("Commencement Date"), through
October 31, 2004 ("Expiration Date")
Base Rent ((P)3): Thirty Six Thousand Six Hundred Five and 00/100
Dollars ($36,605.00) per month
Adjustments to Base Rent: November 1, 2000 $38,196.00
November 1, 2001 $39,788.00
November 1, 2002 $41,379.00
November 1, 2003 $42,971.00
Security Deposit ((P)4): Two Hundred Nineteen Thousand Six Hundred-Thirty
and 00/100 Dollars ($219,630.00), subject to the
adjustments set forth in Section 4 of the Lease.
*Tenant's Share of Operating Expenses ((P)6.1): 56.86% of the Building,
23% of the Park
*Tenant's Share of Tax Expenses ((P)6.2): 23% of the Park
*Tenant's Share of Common Area Utility Costs ((P)7): 56.86% of the Building,
23% of the Park
*Tenant's Share of Utility Expenses ((P)7): 23% of the Building
*The amount of Tenant's Share of the expenses as referenced above shall be
subject to modification as set forth in this Lease.
Permitted Uses ((P)9): Fulfillment and distribution center of DVD rental
including general office and administration,
marketing, R&D, storage, distribution and light
manufacturing, but only to the extent permitted by
the City of San Jose and all agencies and
governmental authorities having jurisdiction
thereof.
Unreserved
Parking Spaces: One hundred twenty-seven (127) non-exclusive and
non-designated spaces
Broker ((P)38): Cornish & Carey Commercial for Tenant
Grubb & Ellis for Landlord
1
<PAGE>
Exhibits: Exhibit A - Premises, Building, Lot and/or Park
Exhibit B - Tenant Improvements
Exhibit C - Rules and Regulations
Exhibit D - Covenants, Conditions and Restrictions
(Intentionally omitted)
Exhibit E - Hazardous Materials Disclosure Certificate - Example
Exhibit F - Change of Commencement Date - Example
Exhibit G - Tenant's Initial Hazardous Materials Disclosure
Certificate
Exhibit H - Sign Criteria (Intentionally omitted)
Exhibit I - Subordination, Non-Disturbance and Attornment
Agreement
2
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
------- ----
<S> <C> <C>
1. Premises......................................................... 4
2. Adjustment of Commencement Date; Condition of the Premises....... 4
3. Rent............................................................. 5
4. Security Deposit................................................. 5
5. Tenant Improvements.............................................. 6
6. Additional Rent.................................................. 6
7. Utilities........................................................ 8
8. Late Charges..................................................... 9
9. Use of Premises.................................................. 9
10. Alterations and Additions; and Surrender of Premises............. 10
11. Repairs and Maintenance.......................................... 11
12. Insurance........................................................ 12
13. Waiver of Subrogation............................................ 14
14. Limitation of Liability and Indemnity............................ 14
15. Assignment and Subleasing........................................ 15
16. Ad Valorem Taxes................................................. 16
17. Subordination.................................................... 16
18. Right of Entry................................................... 17
19. Estoppel Certificate............................................. 17
20. Tenant's Default................................................. 18
21. Remedies for Tenant's Default.................................... 18
22. Holding Over..................................................... 19
23. Landlord's Default............................................... 20
24. Parking.......................................................... 20
25. Sale of Premises................................................. .20
26. Waiver........................................................... 20
27. Casualty Damage.................................................. 20
28. Condemnation..................................................... 22
29. Environmental Matters/Hazardous Materials........................ 22
30. Financial Statements............................................. 24
31. General Provisions............................................... 25
32. Signs............................................................ 26
33. Mortgagee Protection............................................. .26
34. Quitclaim........................................................ 27
35. Modifications for Lender......................................... 27
36. Warranties of Tenant............................................. 27
37. Compliance with Americans with Disabilities Act.................. 27
38. Brokerage Commission............................................. 28
39. Quiet Enjoyment.................................................. 28
40. Landlord's Ability to Perform Tenant's Unperformed Obligations... 28
41. Tenant's Early Termination Option:............................... 28
</TABLE>
3
<PAGE>
LEASE AGREEMENT
Date: This Lease is made and entered into as of the Lease Date set forth on
Page 1. The Basic Lease Information set forth on Page 1 and this Lease
are and shall be construed as a single instrument.
1. PREMISES
Landlord hereby leases the Premises to Tenant upon the terms and conditions
contained herein. Landlord hereby grants to Tenant a license for the right to
use, on a non-exclusive basis, parking areas and ancillary facilities located
within the Common Areas of the Park, subject to the terms of this Lease.
Landlord and Tenant hereby agree that for purposes of this Lease, as of the
Lease Date, the rentable square footage area of the Premises, the Building, the
Lot and the Park shall be deemed to be the number of rentable square feet as set
forth in the Basic Lease Information on Page 1. Tenant hereby acknowledges that
the rentable square footage of the Premises may include a proportionate share of
certain areas used in common by all occupants of the Building and/or the Park
(for example an electrical room or telephone room). Tenant further agrees that
the number of rentable square feet of the Building, the Lot and the Park may
subsequently change after the Lease Date commensurate with any modifications to
any of the foregoing by Landlord, and Tenant's Share shall accordingly change.
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES
2.1 If Landlord cannot deliver possession of the Premises on the
Commencement Date, Landlord shall not be subject to any liability nor shall the
validity of the Lease be affected; provided, the Lease Term and the obligation
to pay Rent shall commence on the date possession is tendered in the condition
required under this Lease (including the substantial completion of the Tenant
Improvements), with all governmental permits required for such improvements, and
the Base Rent Adjustment dates and the Expiration Date shall be extended
commensurately. In the event the Commencement Date and/or the Expiration Date of
this Lease is other than the Commencement Date and/or Expiration Date specified
in the Basic Lease Information, as the case may be, Landlord and Tenant shall
execute a written amendment to this Lease, substantially in the form of
Exhibit F hereto, wherein the parties shall specify the actual commencement
---------
date, expiration date and the date on which Tenant is to commence paying Rent.
The word "Term" whenever used herein refers to the initial term of this Lease
and any extension thereof. By taking possession of the Premises, Tenant shall be
deemed to have accepted the Premises in good condition and state of repair.
Tenant hereby acknowledges and agrees that neither Landlord nor Landlord's
agents or representatives has made ally representations or warranties as to the
suitability, safety or fitness of the Premises for the conduct of Tenant's
business, Tenant's intended use of the Premises or for any other purpose.
Landlord shall deliver possession of the Premises with tile roof, HVAC system,
electrical, plumbing and lighting in good working condition, all carpets
cleaned, walls and ceiling in good repair "like new". Landlord shall repair, at
its sole cost and expense, after receipt of Tenant's written notice thereof,
which notice must be delivered to Landlord within the first ninety (90) days of
the term of this Lease, any (i) defects in the Premises, and (ii) any mechanical
and electrical systems serving the Premises which are not in good working order
to the extent Tenant has not caused such systems to not be in good working
order. If Tenant fails to timely deliver to Landlord any such written notice of
the aforementioned defects or deficiencies within said 90-day period, Landlord
shall have no obligation to perform any such work thereafter, except as
specifically provided in this Lease.
Notwithstanding the foregoing to the contrary, (A) in the event that for reasons
other than the occurrence of a Force Majeure Delay (as hereinafter defined) or a
Tenant Delay (as hereinafter defined) the substantial completion of the Tenant
Improvements ("T.I. Completion") has not occurred by the date which is one
hundred twenty (120) days after the date the Lease is fully executed
("Termination Date"), Tenant may elect to terminate the Lease. Termination of
the Lease by Tenant as provided for herein shall be the sole and exclusive
remedy of Tenant for Landlord's failure to deliver the Premises. Tenant shall
exercise the right to terminate provided for herein by giving Landlord written
notice of its intent to so terminate ("Termination Notice"). The Termination
Notice shall be given, if at all, on or before the date which is five (5) days
after the Termination Date. Termination of the Lease shall be effective sixty
(60) days after Landlord's receipt of the Termination Notice. In the event that
Tenant gives the Termination Notice, and in the further event that during such
sixty (60) day period, the TI Completion Date occurs, the Tenant shall not be
entitled to terminate the Lease as provided for herein. For purposes of this
paragraph the term "Force Majeure Delay" shall mean any actual delay beyond the
reasonable control of Landlord in completion of the Tenant Improvements which is
not a Tenant Delay and which is caused by, without limitation, any one or more
of the following: (a) wars; (b) fire; (c) earthquake, flood or other natural
disaster, (d) unusual and unforeseeable delay not within the reasonable control
of Landlord; (e) casualties; (f) other acts of God; or (g) governmental action
or inaction (including failure, refusal or delay in issuing permits, approvals
and/or
4
<PAGE>
authorizations), or injunction, permit appeal or court order requiring cessation
of construction taking place in the Premises.
The Term "Tenant Delay" shall mean any delay in completion of the Tenant
Improvements resulting from any or all of the following: (i) Tenant's failure to
timely perform any of its obligations under the Lease, including any failure to
complete on or before the date due thereof, any actual item which is Tenant's
responsibility to complete or perform; (ii) Tenant's delay in approving plans,
specifications, drawings, and any other documents setting forth and/or
describing the Tenant Improvements, including, without limitation, the Final
Drawings, beyond those periods of time permitted by the terms of the Lease;
(iii) Tenant's changes to Landlord and Tenant approved plans, specifications,
drawings or any other documents describing and/or depicting the Tenant
Improvements; (iv) Tenant's request for materials, finishes, or installations
which are not readily available or which are incompatible with Landlord's
standard materials, finishes or installations for the Premises; (v) Tenant's use
or occupancy of the Premises during the construction of the Tenant Improvements
or any act or failure to act by Tenant in connection with its use or occupancy
of the Premises during the construction of the Tenant Improvements. Upon
termination of the Lease by Tenant pursuant to the terms of this paragraph,
Landlord shall promptly return all prepaid Rent to Tenant.
2.2 In the event Landlord permits Tenant to occupy the Premises prior to
the Commencement Date, such occupancy shall be at Tenant's sole risk and subject
to all the provisions of this Lease, including, but not limited to, the
requirement to pay Rent and the Security Deposit, and to obtain the insurance
required pursuant to this Lease and to deliver insurance certificates as
required herein. Landlord shall permit Tenant to enter the Premises following
full execution of this Lease, prior to the Commencement Date, for the purpose of
installing its furniture, equipment, data, telecommunications and cabling
systems and trade fixtures. Such use of the Premises shall be subject to all of
the provisions the Lease, except the obligation to pay any Rent thereunder. In
addition to the foregoing, Landlord shall have the right to impose such
additional conditions on Tenant's early entry as Landlord shall deem
appropriate. Landlord shall not allow any other tenant to occupy the portion of
the Building adjacent to the Premises until the demising wall is installed.
3. RENT
On the date that Tenant executes this Lease, Tenant shall deliver to
Landlord the original executed Lease, the Base Rent (which shall be applied
against the Rent payable for the first month Tenant is required to pay Base
Rent), the Security Deposit, and all insurance certificates evidencing the
insurance required to be obtained by Tenant under Section 12 of this Lease.
Tenant agrees to pay Landlord, without prior notice or demand, or abatement,
offset, deduction or claim, the Base Rent specified in the Basic Lease
Information, payable in advance at Landlord's address specified in the Basic
Lease Information on the Commencement Date and thereafter on the first (1st) day
of each month throughout the balance of the Term of the Lease. In addition to
the Base Rent set forth in the Basic Lease Information, Tenant shall pay
Landlord in advance on the Commencement Date and thereafter on the first (1st)
day of each month throughout the balance of the Term of this Lease, as
Additional Rent, Tenant's Share of Operating Expenses, Tax Expenses, Common Area
Utility Costs, and Utility Expenses. Tenant shall also pay to Landlord as
Additional Rent hereunder, immediately on Landlord's demand therefor, any and
all costs and expenses incurred by Landlord to enforce the provisions of this
Lease, including, but not limited to, costs associated with the delivery of
notices, delivery and recordation of notice(s) of default, attorneys' fees,
expert fees, court costs and filing fees (collectively, the "Enforcement
Expenses"). The term "Rent" whenever used herein refers to the aggregate of all
these amounts. If Landlord permits Tenant to occupy the Premises without
requiring Tenant to pay rental payments for a period of time, the waiver of the
requirement to pay rental payments shall only apply to waiver of the Base Rent
and Tenant shall otherwise perform all other obligations of Tenant required
hereunder. The Rent for any fractional part of a calendar month at the
commencement or termination of the Lease term shall be a prorated amount of the
Rent for a full calendar month based upon a thirty (30) day month. The prorated
Rent shall be paid on the Commencement Date and the first day of the calendar
monthinwhich the date of termination occurs, as the case may be.
4. SECURITY DEPOSIT
Upon Tenant's execution of this Lease, Tenant shall deliver to Landlord, as
a Security Deposit for the performance by Tenant of its obligations under this
Lease, the amount specified in the Basic Lease Information. If Tenant is in
default, Landlord may, but without obligation to do so, use the Security
Deposit, or any portion thereof, to cure the default or to compensate Landlord
for all damages sustained by Landlord resulting from Tenant's default,
including, but not limited to the Enforcement Expenses. Tenant shall,
immediately on demand, pay to Landlord a sum equal to the portion of the
Security Deposit so applied or used so as to replenish the amount of the
Security Deposit held to increase such deposit to the amount initially deposited
with Landlord. As soon as practicable after the termination of this Lease,
Landlord shall return the Security Deposit to Tenant, less such amounts as are
reasonably necessary, as determined solely by Landlord, to remedy Tenant's
default(s) hereunder or to
5
<PAGE>
otherwise restore the Premises to a clean and safe condition, reasonable wear
and tear excepted. If the cost to restore the Premises exceeds the amount of the
Security Deposit, Tenant shall promptly deliver to Landlord any and all of such
excess sums as reasonably determined