Sublease Agreement between Oracle USA, Inc. and the Company


     

    Exhibit
      10.1

     

     

     

     

     

     

    SUBLEASE
      AGREEMENT

     

    BETWEEN

     

    ORACLE
      USA, INC.

     

    AND

     

    VITALSTREAM
      HOLDINGS, INC.

     

    555
      Anton Boulevard

    Costa
      Mesa, California

     

    Entire
      Fourth (4th) Floor

     

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    SUBLEASE

     

    THIS
      SUBLEASE ("Sublease") is entered into as of July 31, 2006, by and between ORACLE
      USA, INC., a Colorado corporation ("Sublandlord") and VITALSTREAM HOLDINGS,
      INC., a Nevada corporation ("Subtenant"), with reference to the following
      facts:

     

    A.    Pursuant
      to that certain Lease Agreement between AGL Investments No. 5 Limited
      Partnership (“Original Landlord”) and J. D. Edwards World Solutions Company
      (“Original Tenant”) dated as of March 26, 1999 (“Original Master Lease”) as
      amended by (i) that certain First Amendment to Lease between Original Landlord
      and Original Tenant dated April __, 2003 (“First Amendment”), (ii) that certain
      Second Amendment to Lease between Original Landlord and Original Tenant dated
      May __, 2003 (“Second Amendment”), (iii) that certain Third Amendment to Lease
      between Original Landlord and Original Tenant dated June 30, 2003 (“Third
      Amendment”), (iv) that certain Fourth Amendment to Lease between Original
      Landlord and Original Tenant dated July 29, 2003 (“Fourth Amendment”), (v) that
      certain Fifth Amendment to Lease between Original Landlord and Original Tenant
      dated August 28, 2003 (“Fifth Amendment”), (vi) that certain Sixth Amendment to
      Lease between Original Landlord and Original Tenant dated September 30, 2003
      (“Sixth Amendment”), and (vii) that certain Seventh Amendment to Lease between
      Original Landlord and Original Tenant dated December 26, 2003 (“Seventh
      Amendment”) (the Original Master Lease, as amended by the First Amendment, the
      Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth
      Amendment, the Sixth Amendment and the Seventh Amendment, being referred to
      herein as the “Master Lease”), Sublandlord, as the successor-in-interest to
      Original Tenant under the Master Lease leases from 555 Anton Associates, LLC
      (“Landlord”), as the successor-in-interest to Original Landlord under the Master
      Lease, approximately 40,256 rentable square feet of office space (the “Master
      Lease Premises”) located on the entire fourth (4th) and fifth (5th) floors of
      the building (the “Building”) located at 555 Anton Boulevard, Costa Mesa,
      California.

     

    B.    Subtenant
      wishes to sublease from Sublandlord, and Sublandlord wishes to sublease to
      Subtenant, a portion of the Master Lease Premises containing approximately
      20,128 rentable square feet located on, and consisting of the entire fourth
      (4th) floor of the Building, said space being more particularly identified
      and
      described on the floor plan attached hereto as Exhibit
      A
      and
      incorporated herein by reference (the "Subleased Premises").

     

    NOW,
      THEREFORE, in consideration of the foregoing, and for other good and valuable
      consideration, the receipt and adequacy of which are hereby acknowledged by
      the
      parties, Sublandlord and Subtenant hereby agree as follows:

     

    1.    Sublease.
      Sublandlord hereby subleases to Subtenant and Subtenant hereby subleases from
      Sublandlord for the term, at the rental, and upon all of the conditions set
      forth herein, the Subleased Premises.

     

    2.    Term.

     

    (a)    Generally.
      The
      term of this Sublease ("Term") shall commence on the date (the “Commencement
      Date”) that is the later to occur of (x) October 1, 2006 and (y) the date that
      Sublandlord delivers possession of the Subleased Premises to Subtenant in the
      condition required hereunder and (z) the date upon which Sublandlord procures
      Landlord’s consent to this Sublease (the “Consent”, and the date upon which
      Sublandlord procures the Consent being the “Effective Date”) and end on May 31,
      2009 (the
      "Expiration Date"), unless sooner terminated pursuant to any provision hereof.
      Upon the determination of the Commencement Date, Sublandlord and Subtenant
      will
      enter into a letter agreement in the form of Exhibit
      B
      attached
      hereto.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    (b)    Early
      Access.
      Subtenant and Subtenant’s representatives shall have the right to enter the
      Subleased Premises from and after the later to occur of (i) August 15, 2006
      and
      (ii) the Effective Date (the date upon which Subtenant first has such access
      to
      the Subleased Premises being referred to herein as the “Early Access Date”) for
      the sole purposes of installation of Subtenant’s personal property and the
      testing of equipment, furniture, fixtures and voice and data cabling, all
      subject to the terms, conditions and requirements of the Master Lease. All
      of
      the rights and obligations of the parties under this Sublease (other than
      Subtenant’s obligation to pay Base Rent, but expressly including without
      limitation Subtenant’s obligation to pay excess utility charges pursuant to the
      Master Lease, Subtenant’s obligation to carry insurance pursuant to the Master
      Lease, and Subtenant’s indemnification obligations, and/or damages, reasonable
      costs and expenses incurred by Sublandlord by reason of any default by Subtenant
      or failure on Subtenant’s part to comply with the terms of this Sublease) shall
      commence upon the Early Access Date, and Subtenant shall be deemed to occupy
      the
      Subleased Premises from and after the Early Access Date. Subtenant shall be
      liable for any damages to the Subleased Premises caused by Subtenant’s
      activities at the Subleased Premises from and after the Early Access Date and,
      prior to entering the Subleased Premises, Subtenant shall obtain all insurance
      it is required to obtain hereunder and shall provide certificates of such
      insurance to Sublandlord. Subtenant shall coordinate such entry with
      Sublandlord, and such entry shall be made in compliance with all terms and
      conditions of this Sublease, the Master Lease and the rules and regulations
      attached to the Master Lease.

     

    (c)    Delayed
      Commencement Date.
      If, for
      any reason other than delays caused by Subtenant (including, without limitation,
      Subtenant’s failure to promptly execute and deliver the Consent), the
      Commencement Date has not occurred on or before December 1, 2006, Subtenant
      shall have the right to terminate this Sublease by written notice delivered
      to
      Sublandlord on or before (x) December 10, 2006 and (y) the occurrence of the
      Commencement Date. Immediately upon such termination, Sublandlord shall return
      to Subtenant all amounts paid by Subtenant to Sublandlord upon execution of
      this
      Sublease, or otherwise in connection with this Sublease.

     

    3.    Rent.

     

    3.1    Rent
      Payments.

     

    (a)    Generally.
      From
      and after the Rent Commencement Date (defined below) Subtenant shall pay to
      Sublandlord as base rent for the Subleased Premises during the Term (“Base
      Rent”) the following:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
    

     

    
      	
              Months

              of
                Term

            	
              Base
                Rent Rate Per Rentable 

              Square
                Foot Per Month

            	
              Monthly

              Base
                Rent

            
	
              1
                -
                12

              13
                - 24

              25
                - Expiration Date

            	
              $1.80

              $1.85

              $1.90

            	
              $36,230.40

              $37,236.80

              $38,243.20

            


    

     

    As
      used
      herein, the “Rent Commencement Date” shall be the later of (i) the date that is
      forty-five (45) days after the Early Access Date, or (ii) October 1, 2006.
      Base
      Rent shall be paid on the first day of each month of the Term following the
      Base
      Rent Abatement Period (defined in Section 3.1(b) below), except that Subtenant
      shall pay one (1) month’s Base Rent to Sublandlord upon execution and delivery
      of this Sublease to Sublandlord; said pre-paid Base Rent will be applied by
      Sublandlord to Base Rent first due and payable hereunder following the Base
      Rent
      Abatement Period. Base Rent and Additional Rent (hereinafter defined) for any
      partial month shall be prorated by multiplying the monthly Base Rent and
      Additional Rent by a fraction, the numerator of which is the number of days
      of
      the partial month included in the Term and the denominator of which is the
      total
      number of days in the full calendar month. All
      Rent (hereinafter defined) shall be payable in lawful money of the United
      States, by regular bank check of Subtenant, to Sublandlord at the following
      address:

     

    1001
      Sunset Boulevard

    Rocklin,
      CA 95765

    Attn:
      Lease Administration

     

    or
      to
      such other persons or at such other places as Sublandlord may designate in
      writing.

     

    (b)    Abatement.
      Notwithstanding anything in Section 3(a) above to the contrary, so long as
      Subtenant is not in material monetary default (“Abatement Default”) under this
      Sublease, Subtenant shall be entitled to an abatement of Base Rent for the
      first
      three (3) full calendar months following the Rent Commencement Date (the "Base
      Rent Abatement Period"). The total amount of Base Rent abated during the Base
      Rent Abatement Period is referred to herein as the "Abated Base Rent". If
      Subtenant commits an Abatement Default hereunder at any time during the Term
      and
      fails to cure such Abatement Default within any applicable cure period, all
      then
      unamortized Abated Base Rent shall immediately become due and payable (assuming
      amortization of the Abated Base Rent on a straight-line basis over the Term).
      The payment by Subtenant then unamortized of the Abated Base Rent in the event
      of an Abatement Default shall not limit or affect any of Sublandlord's other
      rights, pursuant to this Sublease or at law or in equity. During the Base Rent
      Abatement Period, only Base Rent shall be abated, and all Additional Rent and
      other costs and charges specified in this Sublease shall remain as due and
      payable pursuant to the provisions of this Sublease.

     

    3.2    Operating
      Costs.

     

    (a)  Definitions.
      For
      purposes of this Sublease and in addition to the terms defined elsewhere in
      this
      Sublease, the following terms shall have the meanings set forth
      below:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    (1)    "Additional
      Rent"
      shall
      mean the sums payable pursuant to Section 3.2(b) below.

     

    (2)    "Base
      Operating Costs"
      shall
      mean Operating Costs payable by Sublandlord to Landlord for the Master Lease
      Premises during the Base Year.

     

    (3)    "Base
      Year"
      shall
      mean the calendar year 2007.

     

    (4)    "Operating
      Costs"
      shall
      mean the aggregate of Expenses and Taxes (as said terms defined in the Master
      Lease) charged by Landlord to Sublandlord pursuant to the Master
      Lease.

     

    (5)    "Rentable
      Area"
      of the
      Subleased Premises and of the Master Lease Premises is stipulated by Sublandlord
      and Subtenant to be 20,128 rentable square feet and 40,256 rentable square
      feet,
      respectively, for all purposes of this Sublease.

     

    (6)    "Rent"
      shall
      mean, collectively, Base Rent, Additional Rent, and all other sums payable
      by
      Subtenant to Sublandlord under this Sublease, whether or not expressly
      designated as "rent", all of which are deemed and designated as rent pursuant
      to
      the terms of this Sublease.

     

    (7)    "Subtenant's
      Percentage Share"
      shall
      mean 50%. Subtenant's Percentage Share has been obtained by dividing the
      Rentable Area of the Subleased Premises by the Rentable Area of the Master
      Lease
      Premises and multiplying such quotient by 100. In the event Subtenant's
      Percentage Share is changed during a calendar year by reason of a change in
      the
      Rentable Area of the Subleased Premises or the Master Lease Premises,
      Subtenant's Percentage Share shall thereupon be adjusted to equal the result
      obtained by dividing the Rentable Area of the Subleased Premises by the Rentable
      Area of the Master Lease Premises and multiplying such quotient by 100,
      Subtenant's Percentage Share shall be determined on the basis of the number
      of
      days during such calendar year at each such percentage share.

     

    (b)    Payment
      of Additional Rent.
      In
      addition to the Base Rent payable pursuant to Section 3.1 above, from and after
      the expiration of the Base Year, for each calendar year of the Term, Subtenant,
      as Additional Rent, shall pay Subtenant's Percentage Share of the amount by
      which Operating Costs payable by Sublandlord for the then current calendar
      year
      exceed Base Operating Costs. Sublandlord shall give Subtenant written notice
      of
      Sublandlord's estimate of the amount of Additional Rent per month payable
      pursuant to this Section 3.2(b) for each calendar year after the Base Year
      promptly following the Sublandlord's receipt of Landlord's estimate of the
      Operating Costs payable under the Master Lease. Thereafter, the Additional
      Rent
      payable pursuant to this Section 3.2(b) shall be determined and adjusted in
      accordance with the provisions of Section 3.2(c) below.

     

    (c)    Procedure.
      The
      determination and adjustment of Additional Rent payable hereunder shall be
      made
      in accordance with the following procedures:

     

    (1)    Delivery
      of Estimate; Payment.
      Upon
      receipt of a statement from Landlord specifying the estimated Operating Costs
      to
      be charged to Sublandlord under the Master Lease with respect to each calendar
      year, or as soon after receipt of such statement as practicable, Sublandlord
      shall give Subtenant written notice of its estimate of Additional Rent payable
      under Section 3.2(b) for the ensuing calendar year, which estimate shall be
      prepared based on the estimate received from Landlord (as Landlord's estimate
      may change from time to time), together with a copy of the statement received
      from Landlord. On or before the first day of each month during each calendar
      year following the Base Year, Subtenant shall pay to Sublandlord as Additional
      Rent one-twelfth (1/12th) of such estimated amount together with the Base
      Rent.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    (2)    Sublandlord’s
      Failure to Deliver Estimate.
      In the
      event Sublandlord's notice set forth in Subsection 3.2(c)(1) is not given on
      or
      before December of the calendar year preceding the calendar year for which
      Sublandlord's notice is applicable, as the case may be, then until the calendar
      month after such notice is delivered by Sublandlord, Subtenant shall continue
      to
      pay to Sublandlord monthly, during the ensuing calendar year, estimated payments
      equal to the amounts payable hereunder during the calendar year just ended.
      Upon
      receipt of any such post-December notice Subtenant shall (i) commence as of
      the
      immediately following calendar month, and continue for the remainder of the
      calendar year, to pay to Sublandlord monthly such new estimated payments and
      (ii) if the monthly installment of the new estimate of such Additional Rent
      is
      greater than the monthly installment of the estimate for the previous calendar
      year, pay to Sublandlord within thirty (30) days of the receipt of such notice
      an amount equal to the difference of such monthly installment multiplied by
      the
      number of full and partial calendar months of such year preceding the delivery
      of such notice.

     

    (d)    Year
      End Reconciliation.
      Within
      thirty (30) days after the receipt by Sublandlord of a final statement of
      Operating Costs from Landlord with respect to each calendar year, Sublandlord
      shall deliver to Subtenant a statement of the adjustment to be made pursuant
      to
      Section 3.2 above for the calendar year just ended, together with a copy of
      any
      corresponding statement received by Sublandlord from Landlord. If on the basis
      of such statement Subtenant owes an amount that is less than the estimated
      payments actually made by Subtenant for the calendar year just ended,
      Sublandlord shall credit such excess to the next payments of Rent coming due
      or,
      if the term of this Sublease is about to expire, promptly refund such excess
      to
      Subtenant. If on the basis of such statement Subtenant owes an amount that
      is
      more than the estimated payments for the calendar year just ended previously
      made by Subtenant, Subtenant shall pay the deficiency to Sublandlord within
      thirty (30) days after delivery of the statement from Sublandlord to
      Subtenant.

     

    (e)    Survival.
      The
      expiration or earlier termination of this Sublease shall not affect the
      obligations of Sublandlord and Subtenant pursuant to Subsection 3.2(d), and
      such
      obligations shall survive and remain to be performed after any expiration or
      earlier termination of this Sublease.

     

    4.    Security
      Deposit.
      Concurrently with Subtenant's execution of this Sublease, Subtenant shall
      deposit with Sublandlord the sum of $72,460.80 (the "Security Deposit"). The
      Security Deposit shall be held by Sublandlord as security for the faithful
      performance by Subtenant of all the provisions of this Sublease to be performed
      or observed by Subtenant. If Subtenant fails to pay rent or other sums due
      hereunder, or otherwise defaults with respect to any provisions of this
      Sublease, Sublandlord may use, apply or retain all or any portion of the
      Security Deposit for the payment of any rent or other sum in default or for
      the
      payment of any other sum to which Sublandlord may become obligated by reason
      of
      Subtenant's default, or to compensate Sublandlord for any loss or damage which
      Sublandlord may suffer thereby. If Sublandlord so uses or applies all or any
      portion of the Security Deposit, Subtenant shall within ten (10) days after
      demand therefor deposit cash with Sublandlord in an amount sufficient to restore
      the Security Deposit to the full amount thereof and Subtenant's failure to
      do so
      shall be a material breach of this Sublease. Sublandlord shall not be required
      to keep the Security Deposit separate from its general accounts. If Subtenant
      performs all of Subtenant's obligations hereunder, the Security Deposit, or
      so
      much thereof as has not theretofore been applied by Sublandlord, shall be
      returned, without interest, to Subtenant (or, at Sublandlord's option, to the
      last assignee, if any, of Subtenant's interest hereunder) within forty-five
      (45)
      days following the later to occur of (x) the expiration of the Term, and (y)
      the
      date upon which Subtenant has vacated the Subleased Premises. No trust
      relationship is created herein between Sublandlord and Subtenant with respect
      to
      the Security Deposit. Sublandlord shall not be required to keep the Security
      Deposit separate from its other accounts. Subtenant hereby waives any and all
      rights under and the benefits of Section 1950.7 of the California Civil Code,
      and all other provisions of law now in force or that become in force after
      the
      date of execution of this Sublease, that provide that Sublandlord may claim
      from
      a security deposit only those sums reasonably necessary to remedy defaults
      in
      the payment of Rent, to repair damage caused by Subtenant, or to clean the
      Subleased Premises. Sublandlord and Subtenant agree that Sublandlord may, in
      addition, claim those sums reasonably necessary to compensate Sublandlord for
      any other foreseeable or unforeseeable loss or damage caused by the act or
      omission of Subtenant or Subtenant’s officers, agents, employees, independent
      contractors, or invitees.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    5.    Use
      and Occupancy.

     

    5.1    Use.
      The
      Subleased Premises shall be used and occupied only for general office use,
      and
      for no other use or purpose.

     

    5.2    Compliance
      with Master Lease.
      Subtenant agrees that it will occupy the Subleased Premises in accordance with
      the terms of the Master Lease and will not suffer to be done or omit to do
      any
      act which may result in a violation of or a default under any of the terms
      and
      conditions of the Master Lease, or render Sublandlord liable for any damage,
      charge or expense thereunder. Subtenant further covenants and agrees to
      indemnify Sublandlord against and hold Sublandlord harmless from any claim,
      demand, action, proceeding, suit, liability, loss, judgment, expense (including
      attorneys fees) and damages of any kind or nature whatsoever arising out of,
      by
      reason of, or resulting from, Subtenant's failure to perform or observe any
      of
      the terms and conditions of the Master Lease or this Sublease. Any other
      provision in this Sublease to the contrary notwithstanding, Subtenant shall
      pay
      to Sublandlord as Rent hereunder any and all sums which Sublandlord may be
      required to pay the Landlord arising out of a request by Subtenant for, or
      use
      by Subtenant of, additional or over-standard Building services from Landlord
      (for example, but not by way of limitation, charges associated with after-hour
      HVAC usage and overstandard electrical charges). Subject to the foregoing and
      to
      the terms and provisions of the Master Lease, Subtenant shall have access to
      the
      Subleased Premises 24 hours per day, 7 days per week.

     

    5.3    Landlord’s
      Obligations.
      Subtenant agrees that Sublandlord shall not be required to perform any of the
      covenants, agreements and/or obligations of Landlord under the Master Lease
      and,
      insofar as any of the covenants, agreements and obligations of Sublandlord
      hereunder are required to be performed under the Master Lease by Landlord
      thereunder, Subtenant acknowledges and agrees that Sublandlord shall be entitled
      to look to Landlord for such performance. In addition, Sublandlord shall have
      no
      obligation to perform any repairs or any other obligation of Landlord under
      the
      Master Lease. Sublandlord shall not be responsible for any failure or
      interruption, for any reason whatsoever, of the services or facilities that
      may
      be appurtenant to or supplied at the Building by Landlord or otherwise,
      including, without limitation, heat, air conditioning, ventilation, life-safety,
      water, electricity, elevator service and cleaning service, if any; and no
      failure to furnish, or interruption of, any such services or facilities shall
      give rise to any (i) abatement, diminution or reduction of Subtenant's
      obligations under this Sublease, except to the extent that Sublandlord’s
      obligations under the Master Lease are also abated, or (ii) liability on the
      part of Sublandlord. Notwithstanding the foregoing, Sublandlord shall promptly
      take such action as may reasonably be indicated, under the circumstances, to
      secure such performance upon Subtenant's request to Sublandlord to do so and
      shall thereafter diligently prosecute such performance on the part of
      Landlord.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    6.    Master
      Lease and Sublease Terms.

     

    6.1    Subject
      to Master Lease.
      This
      Sublease is and shall be at all times subject and subordinate to the Master
      Lease. Subtenant acknowledges that Subtenant has reviewed and is familiar with
      all of the terms, agreements, covenants and conditions of the Master Lease.
      Additionally, Subtenant's rights under this Sublease shall be subject to the
      terms of the Consent. During the Term and for all periods subsequent thereto
      with respect to obligations which have arisen prior to the termination of this
      Sublease, Subtenant agrees to perform and comply with, for the benefit of
      Sublandlord and Landlord, the obligations of Sublandlord under the Master Lease
      which pertain to the Subleased Premises and/or this Sublease, except for those
      provisions of the Master Lease which are directly contradicted by this Sublease,
      in which event the terms of this Sublease document shall control over the Master
      Lease.

     

    6.2    Incorporation
      of Terms of Master Lease.
      The
      terms, conditions and respective obligations of Sublandlord and Subtenant to
      each other under this Sublease shall be the terms and conditions of the Master
      Lease, except for those provisions of the Master Lease which are directly
      contradicted by this Sublease, in which event the terms of this Sublease shall
      control over the Master Lease. Therefore, for the purposes of this Sublease,
      wherever in the Master Lease the word "Landlord" is used it shall be deemed
      to
      mean Sublandlord and wherever in the Master Lease the word "Tenant" is used
      it
      shall be deemed to mean Subtenant. Any non-liability, release, indemnity or
      hold
      harmless provision in the Master Lease for the benefit of Landlord that is
      incorporated herein by reference, shall be deemed to inure to the benefit of
      Sublandlord, Landlord, and any other person intended to be benefited by said
      provision, for the purpose of incorporation by reference in this Sublease.
      Any
      right of Landlord under the Master Lease (a) of access or inspection, (b) to
      do
      work in the Master Lease Premises or in the Building, (c) in respect of rules
      and regulations, which is incorporated herein by reference, shall be deemed
      to
      inure to the benefit of Sublandlord, Landlord, and any other person intended
      to
      be benefited by said provision, for the purpose of incorporation by reference
      in
      this Sublease.

     

    6.3    Modifications.
      For the
      purposes of incorporation herein, the terms of the Master Lease are subject
      to
      the following additional modifications:

     

    (a)    Approvals.
      In all
      provisions of the Master Lease (under the terms thereof and without regard
      to
      modifications thereof for purposes of incorporation into this Sublease)
      requiring the approval or consent of Landlord, Subtenant shall be required
      to
      obtain the approval or consent of both Sublandlord and Landlord.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    (b)    Deliveries.
      In all
      provisions of the Master Lease requiring Tenant to submit, exhibit to, supply
      or
      provide Landlord with evidence, certificates, or any other matter or thing,
      Subtenant shall be required to submit, exhibit to, supply or provide, as the
      case may be, the same to both Landlord and Sublandlord.

     

    (c)    Damage;
      Condemnation.
      Sublandlord shall have no obligation to restore or rebuild any portion of the
      Subleased Premises after any destruction or taking by eminent
      domain.

     

    (d)    Insurance.
      In all
      provisions of the Master Lease requiring Tenant to designate Landlord as an
      additional or named insured on its insurance policy, Subtenant shall be required
      to so designate Landlord and Sublandlord on its insurance policy. Subtenant
      will
      maintain the insurance coverage described in Section 9.2 of the Original Master
      Lease.

     

    6.4    Exclusions.
      Notwithstanding the terms of Section 6.2 above, Subtenant shall have no rights
      nor obligations under the following parts, Sections and Exhibits of the Master
      Lease:

     

    (a)    Original
      Master Lease: Sections 1.1 (except subsection (o)), 1.2, 1.3 (except Subsections
      (d), (e), (f), (h), (i), (j), (k) and (m)), Article 3 (except Sections 3.5
      and
      3.6), Sections 9.1, 15.2, Articles 19, 21, 23, 25, Sections 26.11, 26.18,
      Articles 27, 28, 29, 30, Exhibits A, B and C.;

     

    (b)    First
      Amendment: All;

     

    (c)    Second
      Amendment: All;

     

    (d)    Third
      Amendment: All;

     

    (e)    Fourth
      Amendment: All;

     

    (f)    Fifth
      Amendment: All;

     

    (g)    Sixth
      Amendment: All;

     

    (h)    Seventh
      Amendment: All.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    6.5    Modifications.
      Notwithstanding the terms of Section 6.2 above, the following provisions of
      the
      Master Lease are modified as described below for the purpose of their
      incorporation into this Sublease.

     

    (a)    Subtenant
      will not be entitled to any abatement of Rent pursuant to the provisions of
      Section 5.3 of the Original Master Lease except to the extent that Sublandlord
      is entitled to a similar abatement;

     

    (b)    Subtenant
      shall have the right to use parking spaces pursuant to Section 16 of this
      Sublease, subject to the provisions of Section 19 of the Master
      Lease;

     

    (c)    Subject
      to Landlord’s consent, Subtenant shall have the right, at Subtenant’s expense,
      to include one (1) listing in the Building directory board in the Main Building
      lobby and to install one (1) sign at the entrance to the Subleased Premises,
      subject to the provisions of Section 21.1 of the Original Master
      Lease.

     

    7.    Assignment
      and Subletting.
      Subtenant shall not assign this Sublease or further sublet all or any part
      of
      the Subleased Premises except subject to and in compliance with all of the
      terms
      and conditions of Article 13 of the Original Master Lease, and Sublandlord
      (in
      addition to Master Landlord) shall have the same rights with respect to
      assignment and subleasing as Landlord has under said Article 13.

     

    8.    Default.
      Except
      as expressly set forth herein, Subtenant shall perform all obligations in
      respect of the Subleased Premises that Sublandlord would be required to perform
      pursuant to the Master Lease. It shall constitute an event of default hereunder
      if Subtenant fails to perform any obligation hereunder (including, without
      limitation, the obligation to pay Rent), or any obligation under the Master
      Lease which has been incorporated herein by reference, and, in each instance,
      Subtenant has not remedied such failure after delivery of any written notice
      required under this Sublease and passage of fifty percent (50%) of any
      applicable grace or cure period provided in the Master Lease as modified, if
      at
      all, by the provisions of this Sublease, provided that with respect to
      non-monetary defaults, Subtenant’s cure period shall be the longer of (A)
      one-half of, or (B) five (5) days less than, the actual cure period provided
      for
      such non-monetary default under the Master Lease.

     

    9.    Remedies.
      In the
      event of any default hereunder by Subtenant, Sublandlord shall have all remedies
      provided to the “Landlord” in the Master Lease as if an event of default had
      occurred thereunder and all other rights and remedies otherwise available at
      law
      and in equity. Without limiting the generality of the foregoing, Sublandlord
      may
      continue this Sublease in effect after Subtenant’s breach and abandonment and
      recover Rent as it becomes due. Sublandlord may resort to its remedies
      cumulatively or in the alternative. 

     

    10.         
      Right
      to Cure Defaults.
      If
      Subtenant fails to perform any of its obligations under this Sublease after
      expiration of applicable grace or cure periods, then Sublandlord may, but shall
      not be obligated to, perform any such obligations for Subtenant’s account. All
      costs and expenses incurred by Sublandlord in performing any such act for the
      account of Subtenant shall be deemed Rent payable by Subtenant to Sublandlord
      upon demand, together with interest thereon at the lesser of (i) twelve percent
      (12%) per annum or (ii) the maximum rate allowable under law (the “Interest
      Rate”) from the date of the expenditure until repaid. If Sublandlord undertakes
      to perform any of Subtenant’s obligations for the account of Subtenant pursuant
      hereto, the taking of such action shall not constitute a waiver of any of
      Sublandlord’s remedies. Subtenant hereby expressly waives its rights under any
      statute to make repairs at the expense of Sublandlord.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    11.    Consents
      and Approvals.
      In any
      instance when Sublandlord's consent or approval is required under this Sublease,
      Sublandlord's refusal to consent to or approve any matter or thing shall be
      deemed reasonable if, among other matters, such consent or approval is required
      under the provisions of the Master Lease incorporated herein by reference but
      has not been obtained from Landlord. Except as otherwise provided herein,
      Sublandlord shall not unreasonably withhold, or delay its consent to or approval
      of a matter if such consent or approval is required under the provisions of
      the
      Master Lease and Landlord has consented to or approved of such
      matter.

     

    12.    Sublandlord’s
      Liability.
      Notwithstanding any other term or provision of this Sublease, the liability
      of
      Sublandlord to Subtenant for any default in Sublandlord’s obligations under this
      Sublease shall be limited to actual, direct damages, and under no circumstances
      shall Subtenant, its partners, members, shareholders, directors, agents,
      officers, employees, contractors, sublessees, successors and/or assigns be
      entitled to recover from Sublandlord (or otherwise be indemnified by
      Sublandlord) for (a) any losses, costs, claims, causes of action, damages or
      other liability incurred in connection with a failure of Landlord, its partners,
      members, shareholders, directors, agents, officers, employees, contractors,
      successors and /or assigns to perform or cause to be performed Landlord’s
      obligations under the Master Lease, (b) lost revenues, lost profit or other
      consequential, special or punitive damages arising in connection with this
      Sublease for any reason, or (c) subject to Section 14, any damages or other
      liability arising from or incurred in connection with the suitability of the
      Subleased Premises for Subtenant’s intended uses or the condition of the
      Subleased Premises, other than liability arising from Sublandlord’s gross
      negligence. Subtenant shall, however, have the right to seek any injunctive
      or
      other equitable remedies as may be available to Subtenant under applicable
      law.
      Notwithstanding any other term or provision of this Sublease, no personal
      liability shall at any time be asserted or enforceable against Sublandlord’s
      stockholders, directors, officers, or partners on account of any of
      Sublandlord’s obligations or actions under this Sublease. As used in this
      Sublease, the term “Sublandlord” means the holder of the tenant’s interest under
      the Master Lease and “Sublandlord” means the holder of sublandlord’s interest
      under this Sublease. In the event of any assignment or transfer of the
      Sublandlord’s interest under this Sublease, which assignment or transfer may
      occur at any time during the Term in Sublandlord’s sole discretion, Sublandlord
      shall be and hereby is entirely relieved of all covenants and obligations of
      Sublandlord hereunder accruing subsequent to the date of the transfer and it
      shall be deemed and construed, without further agreement between the parties
      hereto, that any transferee has assumed and shall carry out all covenants and
      obligations thereafter to be performed by Sublandlord hereunder. Sublandlord
      may
      transfer and deliver any then existing Security Deposit to the transferee of
      Sublandlord’s interest under this Sublease, and thereupon Sublandlord shall be
      discharged from any further liability with respect thereto.

     

    13.    Attorneys’
      Fees.
      If
      Sublandlord or Subtenant brings an action to enforce the terms hereof or to
      declare rights hereunder, the prevailing party who recovers substantially all
      of
      the damages, equitable relief or other remedy sought in any such action on
      trial
      and appeal shall be entitled to receive from the other party its costs
      associated therewith, including, without limitation, reasonable attorney's
      fees
      and costs from the other party.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    14.    Delivery
      of Possession.

     

    14.1    Generally.
      Sublandlord represents that it has no notice of any violation of environmental
      laws or regulations with respect to the condition of the Subleased Premises.
      Subject to the foregoing representation, Sublandlord shall deliver, and
      Subtenant shall accept, possession of the Subleased Premises in their "AS IS"
      condition as the Subleased Premises exists on the date hereof. Sublandlord
      shall
      have no obligation to furnish, render or supply any work, labor, services,
      materials, furniture (other than the Furniture, defined below), fixtures,
      equipment, decorations or other items to make the Subleased Premises ready
      or
      suitable for Subtenant's occupancy. In making and executing this Sublease,
      Subtenant has relied solely on such investigations, examinations and inspections
      as Subtenant has chosen to make or has made and has not relied on any
      representation or warranty concerning the Subleased Premises or the Building,
      except as expressly set forth in this Sublease. Subtenant acknowledges that
      Sublandlord has afforded Subtenant the opportunity for full and complete
      investigations, examinations and inspections of the Subleased Premises and
      the
      common areas of the Building. Subtenant acknowledges that it is not authorized
      to make or do any alterations or improvements in or to the Subleased Premises
      except as permitted by the provisions of this Sublease and the Master Lease
      and
      that upon termination of this Sublease, Subtenant shall deliver the Subleased
      Premises to Sublandlord in the same condition as the Subleased Premises were
      at
      the commencement of the Term, reasonable wear and tear excepted; Subtenant
      acknowledges that the foregoing provision requires Subtenant to remove from
      the
      Subleased Premises any improvements constructed therein by Subtenant unless
      Sublandlord shall have previously agreed that such improvements do not have
      to
      be removed; additionally, at Subtenant’s cost, Subtenant will remove all
      telecommunications and data cabling installed by Subtenant.

     

    14.2        
      Subtenant's
      Improvements.

     

    (a)    Generally.
      If
      Subtenant constructs improvements within the Subleased Premises ("Subtenant
      Improvements"), all Subtenant Improvements shall be carried out in accordance
      with the Master Lease. Sublandlord will have the right to approve the plans
      and
      specifications for any proposed Subtenant Improvements, as well as any
      contractors whom Subtenant proposes to retain to perform such work. Accordingly,
      Subtenant will submit all such information for Sublandlord’s review and written
      approval prior to commencement of any such work. Subtenant expressly
      acknowledges that Landlord or Sublandlord may require Subtenant to remove some
      or all of the Subtenant Improvements at the expiration or sooner termination
      of
      the Term. Promptly following the completion of any Subtenant Improvements or
      subsequent alterations or additions by or on behalf of Subtenant, Subtenant
      will
      deliver to Sublandlord a reproducible copy of “as built” drawings of such work
      together with a CAD file of the “as-built” drawings in the then-current version
      of AutoCad. Notwithstanding the foregoing, Sublandlord hereby approves the
      conceptual changes to the Subleased Premises based on the space plan attached
      hereto as Exhibit
      D
      (Block
      Plan 6 - BP6) and will not require Subtenant to remove such improvements unless
      it is a requirement of the Landlord.

     

    (b)    Code-Required
      Work.
      If the
      performance of any Subtenant Improvements or other work by Subtenant within
      the
      Subleased Premises "triggers" a requirement for code-related upgrades to or
      improvements of any portion of the Master Leased Premises or any common areas,
      Subtenant shall be responsible for the cost of such code-required upgrade or
      improvements.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    15.    Holding
      Over.
      If
      Subtenant fails to surrender the Subleased Premises at the expiration or earlier
      termination of this Sublease, occupancy of the Subleased Premises after the
      termination or expiration shall be that of a tenancy at sufferance. Subtenant’s
      occupancy of the Subleased Premises during the holdover shall be subject to
      all
      the terms and provisions of this Sublease and Subtenant shall pay an amount
      (on
      a per month basis without reduction for partial months during the holdover)
      equal to 150% of the sum of the Base Rent and Additional Rent due for the period
      immediately preceding the holdover. No holdover by Subtenant or payment by
      Subtenant after the expiration or early termination of this Sublease shall
      be
      construed to extend the Term or prevent Sublandlord from immediate recovery
      of
      possession of the Subleased Premises by summary proceedings or otherwise. In
      addition to the payment of the amounts provided above, if Sublandlord is unable
      to deliver possession of the Subleased Premises to a new subtenant or to
      Landlord, as the case may be, or to perform improvements for a new subtenant,
      as
      a result of Subtenant’s holdover or perform improvements, Subtenant shall be
      liable to Sublandlord for all damages, including, without limitation,
      consequential damages, that Sublandlord suffers from the holdover; Subtenant
      expressly acknowledges that such damages may include all of the holdover rent
      charged by Landlord under the Master Lease as a result of Subtenant’s holdover,
      which Master Lease holdover rent may apply to the entire Master Lease
      Premises.

     

    16.    Parking.
      During
      the Term Subtenant shall be permitted to use eighty (80) of the parking spaces
      allocated to Sublandlord in the Master Lease of which twenty-four (24) parking
      spaces are surface areas outside the Building. Subtenant will pay the rate(s)
      being charged by Landlord pursuant to the Master Lease for such
      spaces.

     

    17.    Notices:
      Any
      notice by either party to the other required, permitted or provided for herein
      shall be valid only if in writing and shall be deemed to be duly given only
      if
      (a) delivered personally, or (b) sent by means of Federal Express, UPS Next
      Day
      Air or another reputable express mail delivery service guaranteeing next day
      delivery, or (c) sent by United States Certified or registered mail, return
      receipt requested, addressed: (i) if to Sublandlord, at the following
      addresses:

     

    
      	 	Oracle USA, Inc.
	 	c/o Oracle Corporation
	 	1001 Sunset Boulevard
	 	Rocklin, California 95765
	 	Attn:  Lease
              Administration


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
       

      with
        a
        copy to:

    

    


    
      	 	
              Oracle
                USA, Inc.

            
	 	
              c/o
                Oracle Corporation

            
	 	
              500
                Oracle Parkway

            
	 	
              Box
                5OP7

            
	 	
              Redwood
                Shores, California 94065

            
	 	Attn:  Legal
              Department


    

     

    and
      (ii)
      if to Subtenant, at the following address:

     

    Prior
      to
      Commencement Date:

     

    
      	 	
              VitalStream
                Holdings, Inc.

            
	 	
              One
                Jenner, Suite 100

            
	 	
              Irvine,
                California

            
	 	Attn:  Brian
              Stich


    

     

    Following
      Commencement Date:

     

    At
      the
      Subleased Premises, Attn: Brian Stitch

     

    or
      at
      such other address for either party as that party may designate by notice to
      the
      other. A notice shall be deemed given and effective, if delivered personally,
      upon hand delivery thereof (unless such delivery takes place after hours or
      on a
      holiday or weekend, in which event the notice shall be deemed given on the
      next
      succeeding business day), if sent via overnight courier, on the business day
      next succeeding delivery to the courier, and if mailed by United States
      certified or registered mail, three (3) business days following such mailing
      in
      accordance with this Section.

     

    18.    Furniture.
      During
      the Term, at no charge to Subtenant, Subtenant shall be permitted to use the
      existing modular and office furniture and data and telephone cabling located
      in
      the Subleased Premises and described in more particular detail in Exhibit
      C
      attached
      hereto (the “Furniture”). Subtenant shall accept the Furniture in its current
      condition without any warranty of fitness from Sublandlord (Subtenant expressly
      acknowledges that no warranty is made by Sublandlord with respect to the
      condition of any cabling currently located in or serving the Subleased
      Premises); for purposes of documenting the current condition of the Furniture,
      Subtenant and Sublandlord shall, prior to the Commencement Date, conduct a
      joint
      walk-through of the Subleased Premises in order to inventory items of damage
      or
      disrepair in the Furniture. Subtenant shall use the Furniture only for the
      purposes for which such Furniture is intended and shall be responsible for
      the
      proper maintenance, care and repair of the Furniture, at Subtenant’s sole cost
      and expense, and using maintenance contractors specified by Sublandlord. No
      item
      of Furniture shall be removed from the Subleased Premises without Sublandlord’s
      prior written consent. On or about the date of expiration of the Term, the
      parties shall once again conduct a walk-through of the Subleased Premises to
      catalog any items of damage, disrepair, misuse or loss among the Furniture
      (reasonable wear and tear excepted), and Subtenant shall be responsible, at
      Subtenant’s sole cost and expense, for curing any such items (including, with
      respect to loss, replacing any lost item with a substantially similar new item
      reasonably acceptable to Sublandlord). Subtenant shall not modify, reconfigure
      or relocate any furniture except with the advanced written permission of
      Sublandlord, and any work of modifying any Furniture (including, without
      limitation, changing the configuration of, “breaking down” or reassembly of
      cubicles or other modular furniture) shall be performed at Subtenant's sole
      cost
      using Sublandlord’s specified vendors or an alternate vendor approved in writing
      by Sublandlord (such approval to be granted or withheld on Sublandlord's good
      faith discretion, based upon Sublandlord's assessment of factors which include,
      without limitation, whether the performance by such vendor will void applicable
      warranties for such furniture and whether such vendor is sufficiently
      experienced in the design of such furniture). Notwithstanding the foregoing,
      Sublandlord hereby approves the conceptual furniture changes in the Subleased
      Premises based on the drawings attached hereto as Exhibit
      E
      that is
      in accordance with the Subtenant Improvements required in Block Plan 6
      (Exhibit
      D).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    19.    Brokers.
      Subtenant represents that it has dealt directly with and only with Studley,
      Inc.
      (“Subtenant’s Broker”), as a broker in connection with this Sublease.
      Sublandlord represents that it has dealt directly with and only with Trammell
      Crow Company (“Sublandlord’s Broker”), as a broker in connection with this
      Sublease. Sublandlord and Subtenant shall indemnify and hold each other harmless
      from all claims of any brokers other than Subtenant’s Broker and Sublandlord’s
      Broker claiming to have represented Sublandlord or Subtenant in connection
      with
      this Sublease. Subtenant and Sublandlord agree that Subtenant’s Broker and
      Sublandlord’s Broker shall be paid commissions by Sublandlord in connection with
      this Sublease pursuant to a separate agreement.

     

    20.    Right
      of First Refusal.
      Subject
      to Landlord’s consent, prior to subleasing all or any portion of the Master
      Lease Premises on the fifth (5th) floor of the Building (“Expansion Space”),
      Subtenant shall have the on-going right of first refusal to sublease (“Right of
      First Refusal”) any available Expansion Space so long as such space is leased
      and controlled by the Sublandlord. If Sublandlord and a prospective new
      subtenant agree on economic terms pursuant to which such subtenant will sublease
      any of the Expansion Space (“Approved Sublease Offer”), then Sublandlord shall
      deliver a written offer (“Offer”) to Subtenant setting forth the terms of
      Approved Sublease Offer (the “Refusal Notice”) and Subtenant shall have a right,
      to be exercised by the delivery of irrevocable written notice to Sublandlord
      within five (5) days after delivery of the Refusal Notice, to sublease the
      Offered Space on the terms and conditions set forth in the Refusal Notice.
      If
      Subtenant does not timely elect to Sublease the applicable Expansion Space
      on
      the terms set forth in the Refusal Offer, then Sublandlord shall be free to
      sublease the applicable space to the prospective new subtenant based on such
      terms and conditions in the Approved Sublease Offer; provided, however, if
      Sublandlord is willing to sublease the applicable space to the prospective
      subtenant upon Economic Terms (defined below) which are more than five percent
      (5%) less than the Economic Terms set forth in the Refusal Notice, Sublandlord
      must first re-offer the space at the revised Economic Terms (“Revised Offer”) to
      Subtenant after which Subtenant shall have five (5) days to accept the Revised
      Offer. If Subtenant fails to timely accept the Revised Offer, then Sublandlord
      shall be free to sublease the space to the prospective subtenant pursuant to
      such terms and conditions in the Revised Offer. If Subtenant timely accepts
      the
      Offer or the Revised Offer, as applicable, then Sublandlord shall prepare and
      submit to Subtenant an amendment to this Sublease containing the terms of the
      Refusal Notice or the Revised Offer, as applicable, and otherwise on the form
      of
      amendment then in use by Sublandlord and reasonably approved by Subtenant.
      Subtenant shall execute and deliver such an amendment to Sublandlord within
      ten
      (10) business days after delivery of same to Subtenant for execution. However,
      if Subtenant fails to timely execute and deliver the amendment (or fails to
      object to the terms contained therein as not correctly being in accordance
      with
      the terms of the Refusal Notice, Revised Offer, or this Sublease), Subtenant
      shall nonetheless be irrevocably bound to sublease the applicable space from
      Sublandlord on the terms set forth in the Refusal Notice or the Revised Offer.
      This Right of First Refusal is personal to the original Subtenant, and shall
      automatically terminate with the expiration or sooner termination of this
      Sublease, the expiration or earlier termination of the Master Lease with respect
      to the fifth (5th) floor of the Building, or upon the assignment of the Sublease
      (to a non-affiliated entity of Subtenant) or the sub-subletting of all or more
      than fifty percent (50%) of the rentable area in the original Subleased
      Premises. As used herein, “Economic Terms” shall mean the net, aggregated, cost
      to Subtenant or another party, on a present value basis, of the following terms
      for the space in question: (i) the rental rate, (ii) the amount of any subtenant
      improvement allowance (which amount is a deduction from Subtenant's or the
      other
      party's cost), (iii) the amount of free rent (which amount is a deduction from
      Subtenant's or the other party's cost), (iv) the amount of protection from
      the
      payment of operating and tax expenses , and (v) any other lease concessions
      or
      inducements which have a reasonably ascertainable monetary value.

     

    21.    Complete
      Agreement.
      There
      are no representations, warranties, agreements, arrangements or understandings,
      oral or written, between the parties or their representatives relating to the
      subject matter of this Sublease which are not fully expressed in this Sublease.
      This Sublease cannot be changed or terminated nor may any of its provisions
      be
      waived orally or in any manner other than by a written agreement executed by
      both parties.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    22.    Interpretation.
      Irrespective of the place of execution or performance, this Sublease shall
      be
      governed by and construed in accordance with the laws of the State of
      California. If any provision of this Sublease or the application thereof to
      any
      person or circumstance shall, for any reason and to any extent, be invalid
      or
      unenforceable, the remainder of this Sublease and the application of that
      provision to other persons or circumstances shall not be affected but rather
      shall be enforced to the extent permitted by law. The table of contents,
      captions, headings and titles, if any, in this Sublease are solely for
      convenience of reference and shall not affect its interpretation. This Sublease
      shall be construed without regard to any presumption or other rule requiring
      construction against the party causing this Sublease or any part thereof to
      be
      drafted. If any words or phrases in this Sublease shall have been stricken
      out
      or otherwise eliminated, whether or not any other words or phrases have been
      added, this Sublease shall be construed as if the words or phrases so stricken
      out or otherwise eliminated were never included in this Sublease and no
      implication or inference shall be drawn from the fact that said words or phrases
      were so stricken out or otherwise eliminated. Each covenant, agreement,
      obligation or other provision of this Sublease shall be deemed and construed
      as
      a separate and independent covenant of the party bound by, undertaking or making
      same, not dependent on any other provision of this Sublease unless otherwise
      expressly provided. All terms and words used in this Sublease, regardless of
      the
      number or gender in which they are used, shall be deemed to include any other
      number and any other gender as the context may require. The word "person" as
      used in this Sublease shall mean a natural person or persons, a partnership,
      a
      corporation or any other form of business or legal association or
      entity.

     

    23.    Counterparts.
      This
      Sublease may be executed in separate counterparts, each of which shall
      constitute an original and all of which together shall constitute one and the
      same instrument. This Sublease shall be fully executed when each party whose
      signature is required has signed and delivered to each of the parties at least
      one counterpart, even though no single counterpart contains the signatures
      of
      all parties hereto.

     

    IN
      WITNESS WHEREOF, the parties hereto hereby execute this Sublease as of the
      day
      and year first above written.

     

    
      	 	SUBLANDLORD:   
ORACLE
              USA, INC., 
                                                  
                a Colorado corporation

            
	 	 	 
	 	By: 	/s/ Randall W.
              Smith                                              
              
	 	Print Name:	Randall
              W.
              Smith                                                   
              
	 	Title:	VP,
              Real Estate and
              Facilities                               
              


    

     

    
       

      
        	 	
                SUBTENANT:        
VITALSTREAM
                  HOLDINGS, INC.,

                                                     
                  a
                  Nevada corporation

              
	 	 	 
	 	By: 	
                /s/
                  Philip N.
                  Kaplan                                               
                                                       
                  

              
	 	Print Name:	
                Philip
                  N.
                  Kaplan                                                      
                  

              
	 	Title:	
                President
                  and Chief Operating
                  Officer                 

              


      

       

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
      A

     

    Subleased
      Premises

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      B

     

    Commencement
      Agreement

    


    Date             
      September
      14, 2006

    


    Subtenant           
      VITALSTREAM
      HOLDINGS, INC.

    Address      
      555
      Anton
      Blvd. Suite 400

                                 
      Costa
      Mesa, CA 92626

    


    
      	
              Re:
                

            	
              Commencement
                Letter with respect to that certain Sublease dated as of the 31 day
                of
                July, 2006, by and between ORACLE
                USA, INC., a Colorado corporation,
                as Sublandlord, and VITALSTREAM
                HOLDINGS, INC., a Nevada corporation, as
                Subtenant, for 20,128
                rentable square feet on the fourth (4th) floor of the Building located
                at
                555 Anton Boulevard, Costa Mesa,
                California.

            


    

    


    Dear Mr.
      Stich:

    


    In
      accordance with the terms and conditions of the above referenced Sublease,
      Subtenant accepts possession of the Premises and agrees:

    


    1.    The
      Commencement Date is October
      13, 2006 (Early Access on August 29, 2006;

    


    2.    The
      Expiration Date is May
      31, 2009;

    


    3.    The
      Base
      Rent Abatement Period began October 13, 2006 and terminates on January 13,
      2007.

    


    Please
      acknowledge your acceptance of possession and agreement to the terms set forth
      above by signing all 3 counterparts of this Commencement Letter in the space
      provided and returning 2 fully executed counterparts to my
      attention.

    


    Sincerely,

    


    /s/
      Steven N. Tsuruoka

    Oracle
      USA, Inc.

    Steven
      N.
      Tsuruoka

    Sr.
      Real
      Estate Manager

    


    Agreed
      and Accepted:

    


    Subtenant:  VITALSTREAM
      HOLDINGS, INC.

    


    By:                   
            /s/
      Eric L.
      Mersch                      


    Name:              
            Eric
      L.
      Mersch                            


    Title:                
            CFO                                              

    Date:                
            9/21/06                                         
      

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      C

     

    Furniture

     

     

    [image]

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      D

     

    Subtenant’s
      Space Plan

    


     

    [image]

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



    EXHIBIT
      E

     

    Furniture
      Modifications

    


     

    [image]