California-Fremont-46939 Bayside Parkway Sublease - VA Linux Systems Inc. and StorageWay Inc.
SUBLEASE
THIS SUBLEASE (this "Sublease") is dated for reference purposes as of
December 15, 2000, and is made by and between VA Linux Systems, Inc.
("Sublandlord"), and StorageWay, Inc. ("Subtenant"). Sublandlord and Subtenant
hereby agree as follows:
1. RECITALS: This Sublease is made with reference to the fact that Renco
Investment Company, as landlord ("Master Landlord") and Sublandlord, as tenant,
are parties to that certain Lease dated April 6, 2000 (the "Master Lease"), with
respect to those certain premises consisting of approximately 139,311 rentable
square feet described therein (the "Master Premises"), in those certain
buildings located at 47071 and 46939 Bayside Parkway, Fremont California. A copy
of the Master Lease is attached hereto as Exhibit A. Capitalized terms used and
not defined herein shall have the meaning ascribed to them in the Master Lease.
2. SUBLEASED PREMISES: Subject to the terms and conditions of this
Sublease, Sublandlord hereby subleases to Subtenant, and Subtenant hereby
subleases from Sublandlord, a portion of the Master Premises consisting of
approximately 51,767 rentable square feet located at 46939 Bayside Parkway,
Fremont, California, as more particularly described on Exhibit B attached hereto
(the "Subleased Premises").
3. TERM:
A. TERM. The term (the "Term") of this Sublease shall be for the
period commencing on December 1, 2000 (the "Commencement Date") and ending
November 30, 2002 unless this Sublease is sooner terminated pursuant to its
terms or the Master Lease is sooner terminated pursuant to its terms (the
"Expiration Date").
B. NO OPTION TO EXTEND. Notwithstanding anything to the contrary
herein or in the Master Lease, Subtenant shall have no options or rights to
extend the Term of this Sublease or expand the Subleased Premises.
4. RENT:
A. BASE RENT. Commencing on the Commencement Date and continuing
each month throughout the Term of this Sublease, Subtenant shall pay to
Sublandlord as base rent ("Base Rent") for the Subleased Premises monthly
installments as follows:
<TABLE>
<CAPTION>
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TIME PERIOD MONTHLY BASE RENT
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<S> <C>
December 1, 2000 -- November 30, 2001 *
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December 1, 2001 -- November 30, 2002 *
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</TABLE>
Base Rent and Additional Rent, as defined in Paragraph 4.B below, (collectively,
hereinafter "Rent") shall be paid in advance on or before the first (1st) day of
each month. Rent for any period during the Term hereof which is for less than
one (1) month of the Term shall be a pro rata portion of the monthly installment
based on a thirty (30) day month. Rent shall be payable without notice or demand
and without any deduction, offset, or abatement, in lawful money of the United
States of America. Rent shall be paid directly to Sublandlord at 47071 Bayside
Parkway, Fremont, CA 94538, Attention: Accounts Receivable, or such other
address as may be designated in writing by Sublandlord.
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B. ADDITIONAL RENT. All monies other than Base Rent required to be
paid by Subtenant under this Sublease, including, without limitation, all
amounts payable by Sublandlord under the Master Lease with respect to or
reasonably allocated to the Subleased Premises shall be deemed additional rent
("Additional Rent"). Subtenant acknowledges that Sublandlord is required to pay
to Master Landlord "Building Operating Expenses" (as defined in the Master
Lease) and estimated payments thereof and adjustments thereto under the Master
Lease. In addition to all other Additional Rent set forth in this Sublease,
Subtenant shall pay to Sublandlord as Additional Rent hereunder, Subtenant's pro
rata share of all of such Building Operating Expenses payable by Sublandlord to
Master Landlord. Subtenant's pro rata share shall mean that amount, expressed as
a percentage, equal to the number of square feet included in the Subleased
Premises divided by the number of square feet in the Master Premises. Such
amounts (including estimated payments thereof and adjustments thereto) shall be
payable by Subtenant no later than two (2) days before the dates the same are
due under the Master Lease. Sublandlord shall promptly forward the appropriate
invoices received from Master Landlord. Subtenant and Sublandlord agree, as a
material part of the consideration given by Subtenant to Sublandlord for this
Sublease, that Subtenant shall pay Subtenant's pro rata share of all costs,
expenses, taxes, insurance, maintenance and other charges of every kind and
nature arising in connection with the Master Lease or the Subleased Premises,
such that Sublandlord shall receive, as net consideration for this Sublease,
full reimbursement thereof. Notwithstanding the foregoing, in the event any
Additional Rent is incurred for Subtenant's sole benefit or as a result of
Subtenant's request for certain services (such as extra hours' charges, etc.) or
otherwise, Subtenant shall pay the entire cost thereof, and such charges shall
not be pro rated between Sublandlord and Subtenant.
C. PREPAYMENT OF RENT. Upon execution hereof by Subtenant, Subtenant
shall pay to Sublandlord the sum of * which shall constitute Base Rent for the
first * of the Term.
5. SECURITY DEPOSIT:
A. Upon execution of this Sublease by Subtenant, Subtenant shall
deposit with Sublandlord the sum of * in cash and * in the form of a letter of
credit (the "Letter of Credit") as security for the performance by Subtenant of
its obligations under this Sublease, and not as a prepayment of rent
(collectively, the "Security Deposit"). If Subtenant defaults under this
Sublease, Sublandlord may apply all or any part of the Security Deposit for the
payment of any rent or other sum in default, the repair of any damage to the
Subleased Premises caused by Subtenant or the payment of any other amount which
Sublandlord may spend or become obligated to spend by reason of Subtenant's
default or to compensate Sublandlord for any other loss or damage which
Sublandlord may suffer by reason of Subtenant's default to the full extent
permitted by law. To the extent any portion of the Security Deposit is used,
Subtenant shall within * after demand from Sublandlord restore the Security
Deposit to its full amount. Sublandlord may keep the Security Deposit in its
general funds and shall not be required to pay interest to Subtenant on the
deposit amount. If Subtenant shall perform all of its obligations under this
Sublease and return the Subleased Premises to Sublandlord at the end of the
Term, Sublandlord shall return all of the remaining Security Deposit to
Subtenant within * after the end of the Term. The Security Deposit shall not
serve as an advance payment of rent or a measure of Sublandlord's damages for
any default under this Sublease. Subtenant covenants and agrees that it shall
not assign or encumber or attempt to assign or encumber the Security Deposit and
neither Sublandlord or its successors or assigns shall be bound by any such
agreement, encumbrance, attempted assignment or attempted encumbrance.
B. The Letter of Credit shall be in the form of an irrevocable and
unconditional letter of credit governed by the Uniform Customs and Practice for
Documentary Credits (1993 revisions), International Chamber of Commerce
Publication No. 500, as revised from time to time, in an amount equal to *,
issued to Sublandlord, as beneficiary, in form and substance reasonably
satisfactory to Sublandlord, by a
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bank approved by Sublandlord (which approval may be withheld in Sublandlord's
sole discretion) qualified to transact banking business in California with an
office in the City of Fremont or in another city in the San Francisco greater
bay area at which drafts drawn on the Letter of Credit may be presented for
payment. Sublandlord hereby approves of Comerica Bank as an issuing bank. The
full amount of the Letter of Credit shall be available to Sublandlord upon
presentation of Sublandlord's sight draft accompanied only by the Letter of
Credit and Sublandlord's signed statement that Sublandlord is entitled to draw
on the Letter of Credit pursuant to this Sublease. Subtenant shall maintain the
Letter of Credit for the entire Term and any extension thereof. The Letter of
Credit shall expressly state that the Letter of Credit and the right to draw
thereunder may be transferred or assigned by Sublandlord to any successor or
assignee of Sublandlord under this Sublease. Subtenant shall pay any fees
related to the issuance or amendment of the Letter of Credit, including, without
limitation, any transfer fees. The Letter of Credit shall provide that it will
be automatically renewed until * after the Expiration Date unless the issuer
provides Sublandlord with written notice of non-renewal at the notice address
herein at least sixty (60) days prior to the expiration thereof. If, not later
than * prior to the expiration of the Letter of Credit, Subtenant fails to
furnish Sublandlord with a replacement Letter of Credit pursuant to the terms
and conditions of this section, then Sublandlord shall have the right to draw
the full amount of the Letter of Credit, by sight draft, and shall hold the
proceeds of the Letter of Credit as a cash Security Deposit pursuant to the
terms and conditions of Section 5.A above.
6. FURNITURE: During the Term of the Sublease, Subtenant shall have the
right to use the furniture currently existing in the Subleased Premises and
outlined on Exhibit C attached hereto (the "Furniture"). Such Furniture is
provided by Sublandlord in their "AS IS" condition, with all faults and defects,
and Subtenant shall use such Furniture at Subtenant's sole risk. No
representations or warranties whatsoever as to the Furniture's condition or
fitness for a particular purpose, express or implied, are made by Sublandlord.
Subtenant shall maintain and repair the Furniture, and shall surrender the
Furniture at the expiration or earlier termination of the Sublease, in the same
condition as received by Subtenant subject to ordinary wear and tear. Subtenant
shall pay Sublandlord, as Additional Rent, the sum of * per month for the right
to use such Furniture.
7. LATE CHARGE: If Subtenant fails to pay Sublandlord any amount due
hereunder on or before * after such payment is due, Subtenant shall pay to
Sublandlord upon demand a late charge equal to * of the delinquent amount. The
parties agree that the foregoing late charge represents a reasonable estimate of
the cost and expense which Sublandlord will incur in processing each delinquent
payment. Sublandlord's acceptance of any interest or late charge shall not waive
Subtenant's default in failing to pay the delinquent amount.
8. HOLDOVER: Subtenant acknowledges that it is critical that Subtenant
surrender the Subleased Premises on or before the Expiration Date in accordance
with the terms of this Sublease. Accordingly, Subtenant shall indemnify, defend
and hold harmless Sublandlord from and against all losses, costs, claims,
liabilities and damages resulting from Subtenant's failure to surrender the
Subleased Premises on the Expiration Date in the condition required under the
terms of this Sublease (including, without limitation, any liability or damages
sustained by Sublandlord as a result of a holdover of the Master Premises by
Sublandlord occasioned by the holdover of the Subleased Premises by Subtenant).
In addition, Subtenant shall pay Sublandlord holdover rent equal to * of Base
Rent plus any Additional Rent payable hereunder for any period from the
Expiration Date through the date Subtenant surrenders the Subleased Premises in
the condition required hereunder.
9. REPAIRS: Subject to Paragraph 15.B hereof, the parties acknowledge
and agree that Subtenant is subleasing the Subleased Premises on an "AS IS"
basis, and that Sublandlord has made no representations or warranties, express
or implied, whatsoever, with respect to the Subleased Premises, including,
without
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limitation, any representation or warranty as to the suitability of the
Subleased Premises for Subtenant's intended use or any representation or
warranty made by Master Landlord under the Master Lease. Sublandlord shall have
no obligation whatsoever to make or pay the cost of any alterations,
improvements or repairs to the Subleased Premises, including, without
limitation, any improvement or repair required to comply with any law,
regulation, building code or ordinance (including the Americans with
Disabilities Act of 1990, as may be amended). In addition, Sublandlord shall
have no obligation to perform any repairs or any other obligation of Master
Landlord required to be performed by Master Landlord under the terms of the
Master Lease (including, without limitation, Master Landlord's obligations under
Articles 5, 6, 9, 10 and 11 of the Master Lease and Master Landlord's obligation
to comply with laws and carry building insurance). Sublandlord shall, however,
request performance of the same in writing from Master Landlord promptly after
being requested to do so by Subtenant, and shall use Sublandlord's reasonable
efforts (not including the payment of money, the incurring of any liabilities,
or the institution of legal proceedings) to obtain Master Landlord's
performance. Subtenant expressly waives all rights under law (if any) to make
repairs at the expense of Sublandlord.
10. RIGHT TO CURE DEFAULTS: If Subtenant fails to pay any sum of money
to Sublandlord, or fails to perform any other act on its part to be performed
hereunder, then Sublandlord may, but shall not be obligated to, make such
payment or perform such act. All such sums paid, and all reasonable costs and
expenses of performing any such act, shall be deemed Additional Rent payable by
Subtenant to Sublandlord upon demand, together with interest thereon at the
lesser of (i) * per annum or (ii) the maximum rate allowable under law (the
"Interest Rate") from the date of the expenditure until repaid.
11. INDEMNITY: Except to the extent caused by the gross negligence or
willful misconduct of Sublandlord, its agents, employees or contractors,
Subtenant shall indemnify, defend with counsel reasonably acceptable to
Sublandlord, protect and hold harmless Sublandlord and its agents, employees,
directors, shareholders, and representatives from and against any and all
losses, claims, liabilities, judgments, causes of action, damages, costs and
expenses (including, without limitation, reasonable attorneys' fees), caused by
or arising in connection with: (i) the Subtenant's use, occupancy or operation
of the Subleased Premises; (ii) the negligence or willful misconduct of
Subtenant or its agents, employees, contractors or invitees; and (iii) a breach
of Subtenant's obligations under this Sublease or the provisions of the Master
Lease with respect to the Subleased Premises. Subtenant's covenants under this
Paragraph shall survive the termination of this Sublease.
Except to the extent caused by the negligence or willful misconduct of
Subtenant, its agents, employees or contractors, Sublandlord shall indemnify,
defend with counsel reasonably acceptable to Subtenant, protect and hold
harmless Subtenant and its agents, employees, directors, shareholders, and
representatives from and against any and all losses, claims, liabilities,
judgments, causes of action, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees), caused by or arising in connection with
the gross negligence or willful misconduct of Sublandlord or its agents,
employees, contractors or invitees or a breach of Sublandlord's obligations
under this Sublease or the provisions of the Master Lease except to the extent
such breach is caused by a breach of Subtenant's obligations under the Sublease.
Sublandlord's covenants under this Paragraph shall survive the termination of
this Sublease.
12. ASSIGNMENT AND SUBLETTING: Subject to the terms of Article 7 of the
Master Lease, incorporated herein, Subtenant may not assign any interest in this
Sublease (by operation of law or otherwise), sublet any of the Subleased
Premises, transfer any interest of Subtenant therein or permit any use of the
Subleased Premises by another party (collectively, "Transfer"), without the
prior written consent of Sublandlord and Master Landlord. Sublandlord's consent
shall not be unreasonably withheld provided, however, Sublandlord's withholding
of consent shall in all events be deemed reasonable if for any reason Master
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Landlord's consent is not obtained. A consent to one Transfer shall not be
deemed to be a consent to any subsequent Transfer. Any Transfer without such
consent shall be void and, at the option of Sublandlord, shall be a material
default under this Sublease. Sublandlord's waiver or consent to any assignment
or subletting shall be ineffective unless set forth in writing, and Subtenant
shall not be relieved from any of its obligations under this Sublease unless the
consent expressly so provides. Notwithstanding anything to the contrary, in no
event may Subtenant assign the Sublease, sub-sublet the Subleased Premises or
otherwise transfer Subtenant's interest herein if doing so could permit the
Master Landlord to terminate the Lease.
13. USE:
A. Subtenant may use the Subleased Premises for the "Permitted Use"
under the Master Lease and for no other purpose whatsoever.
B. Subtenant shall not use, store, keep, handle, manufacture,
transport, release, discharge, emit or dispose of any Hazardous Materials in,
on, under, about, to or from the Subleased Premises except small quantities of
ordinary office products and janitorial supplies. Subtenant shall indemnify,
defend with counsel reasonably acceptable to Sublandlord and hold harmless
Sublandlord and its agents, employees, directors, shareholders, contractors and
representatives from and against all claims, actions, suits, proceedings,
judgments, losses, costs, personal injuries, damages, liabilities, deficiencies,
fines, penalties, damages, attorneys' fees, consultants' fees, investigations,
detoxifications, remediations, removals, and expenses of every type and nature,
arising from or relating in any manner to the use, storage, handling,
manufacture, transportation, release, discharge, emission or disposal of
Hazardous Materials on or about the Subleased Premises or Building during the
Term of this Sublease by Subtenant or its agents, employees, contractors or
invitees. As used herein, "Hazardous Materials" shall mean any material or
substance that is now or hereafter designated by any governmental authority to
be radioactive, toxic, hazardous or otherwise a danger to health, reproduction
or the environment.
C. Subtenant shall comply with all reasonable rules and regulations
promulgated from time to time by Sublandlord or Master Landlord.
D. Sublandlord shall have the right to use, at no charge, the large
meeting area within the Subleased Premises outlined on Exhibit B hereto upon at
least one (1) weeks written notice, but for no more than two (2) meetings per
month. If within twenty-four (24) hours after receiving such notice, Subtenant
informs Sublandlord that Subtenant will be holding its own meeting on such date
at such time, Sublandlord and Subtenant shall reschedule Sublandlord's use of
the large meeting area for another date and/or time in reasonable proximity to
the requested date and time. Subtenant shall keep the large meeting area
generally available for Sublandlord's periodic use during the Term.
14. EFFECT OF CONVEYANCE: As used in this Sublease, the term
"Sublandlord" means the holder of the Tenant's interest under the Master Lease.
In the event of any assignment or transfer of the Tenant's interest under the
Master Lease, which assignment or transfer may occur at any time during the Term
hereof in Sublandlord's sole discretion, Sublandlord shall be and hereby is
entirely relieved of all covenants and obligations of Sublandlord hereunder, 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
shall transfer and deliver any security of Subtenant to the transferee of the
Tenant's interest under the Master Lease, and thereupon Sublandlord shall be
discharged from any further liability with respect thereto.
15. DELIVERY AND ACCEPTANCE:
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A. Sublandlord shall deliver the Subleased Premises in broom-clean
condition. This Sublease shall not be void or voidable, nor shall Sublandlord be
liable to Subtenant for any loss or damage, by reason of delays in Sublandlord
delivering the Subleased Premises to Subtenant for any reason whatsoever. Rent
shall commence on December 1, 2000 whether or not the Subleased Premises have
been delivered to Subtenant; provided, however, in the event the Subleased
Premises are not delivered to Subtenant on or before January 15, 2001, Rent from
and after January 15, 2001 shall abate until Sublandlord delivers possession of
the Subleased Premises to Subtenant. Subtenant has fully inspected the Subleased
Premises and is satisfied with the condition thereof. By taking possession of
the Subleased Premises, Subtenant conclusively shall be deemed to have accepted
the Subleased Premises in its then-existing, "AS IS" condition, without any
representation or warranty whatsoever from Sublandlord with respect thereto.
B. Notwithstanding the foregoing, in the event the mechanical,
electrical, plumbing, heating, ventilation, air conditioning or roof membrane in
the Subleased Premises require repair within thirty (30) days after the
Subleased Premises are delivered to Subtenant, provided Subtenant has provided
notice of such need for repair prior to the expiration of such thirty (30)-day
period, Sublandlord shall, within a commercially reasonable time, perform such
repairs or cause such repairs to be performed at no cost to Subtenant. In
addition, Sublandlord shall cooperate with Subtenant (not including the payment
of money, the incurring of any liabilities, or the institution of legal
proceedings) in enforcing any warranties Sublandlord may have with respect to
the Subleased Premises which would reduce Subtenant's obligations hereunder.
16. IMPROVEMENTS: Subtenant shall not make any alterations or
improvements to the Subleased Premises (i) without the prior written consent of
both Master Landlord and Sublandlord, and (ii) except in accordance with the
Master Lease. Subtenant shall have the right to select its own general
contractor subject, however, to Sublandlord's and Master Landlord's prior
written consent to such contractor. Sublandlord's consent under this Paragraph
16 shall not be unreasonably withheld provided, however, Sublandlord's
withholding of consent shall in all events be deemed reasonable if for any
reason Master Landlord's consent is not obtained. Sublandlord shall lock the
doors that go to the breezeway for the buildings.
17. RELEASE AND WAIVER OF SUBROGATION: Notwithstanding anything to the
contrary in this Sublease, Sublandlord and Subtenant hereby release each other
from any damage to property or loss of any kind which is caused by or results
from any risk that normally would be insured against under any property
insurance policy required to be carried by either party. This release shall be
in effect only so long as the applicable insurance policy contains a clause to
the effect that this release shall not affect the right of the insured to
recover under the policy. Each party shall use its reasonable efforts to cause
each property insurance policy obtained by it to provide that the insurer waives
all right of recovery against the other party and its agents and employees in
connection with any damage or injury covered by the policy, and each party shall
notify the other party if it is unable to obtain a waiver of subrogation.
Sublandlord shall not be liable to Subtenant, nor shall Subtenant be entitled to
terminate this Sublease or to abate Rent for (i) the failure or interruption of
any utility system or service or (ii) the failure of Master Landlord to maintain
the Subleased Premises as may be required under the Master Lease.
18. INSURANCE: Subtenant shall obtain and keep in full force and effect,
at Subtenant's sole cost and expense, during the Term the insurance required to
be carried by the "Tenant" under the Master Lease. Subtenant shall include
Sublandlord and Master Landlord as an additional insured in any policy of
insurance carried by Subtenant in connection with this Sublease and shall
provide Sublandlord with certificates of insurance upon Sublandlord's request.
19. DEFAULT: Subtenant shall be in material default of its obligations
under this Sublease if any of the following events occur:
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A. Subtenant fails to pay any Rent within * after written notice of
nonpayment; or
B. Subtenant fails to perform any term, covenant or condition of
this Sublease (except those requiring payment of Rent) and fails to cure such
breach within * after delivery of a written notice specifying the nature of the
breach, provided that if such cure cannot reasonably be cured within *,
Subtenant shall have such longer period reasonably necessary to effect such cure
so long as Subtenant has commenced such cure within such * period and diligently
completes such cure; or
C. the bankruptcy or insolvency of Subtenant, transfer by Subtenant
in fraud of creditors, an assignment by Subtenant for the benefit of creditors,
or the commencement of any proceedings of any kind by or against Subtenant under
any provision of the Federal Bankruptcy Act or under any other insolvency,
bankruptcy or reorganization act unless, in the event any such proceedings are
involuntary, Subtenant is discharged from the same within * thereafter;
D. the appointment of a receiver for a substantial part of the
assets of Subtenant;
E. the levy upon this Sublease or any estate of Subtenant hereunder
by any attachment or execution and the failure within * thereafter to have such
attachment or execution vacated or such other action taken with respect thereto
so as to put Sublandlord at no risk of having an unconsented transfer of this
Sublease;
F. Subtenant abandons the Subleased Premises; or
G. Subtenant commits any other act or omission which could
constitute a default under the Master Lease beyond applicable notice and cure
periods under the Master Lease.
20. REMEDIES: In the event of any default by Subtenant, Sublandlord
shall have all remedies provided to the "Landlord" under Article 12 of the
Master Lease and all other rights and remedies otherwise available at law and in
equity. Without limiting the generality of the foregoing, Sublandlord shall have
the remedy described in California Civil Code Section 1951.4 (Sublandlord may
continue the Sublease in effect after Subtenant's breach and abandonment and
recover rent as it becomes due, if Subtenant has right to sublet or assign,
subject only to reasonable limitations). Sublandlord may resort to its remedies
cumulatively or in the alternative.
21. SURRENDER: On or before the Expiration Date or any sooner
termination of this Sublease, Subtenant shall remove all of its trade fixtures,
personal property and all alterations constructed by Subtenant in the Subleased
Premises which are required to be removed under the terms of this Sublease or
the Master Lease and shall surrender the Subleased Premises to Sublandlord in
good condition, order and repair, reasonable wear and tear and damage by
casualty or condemnation excepted. Subtenant shall repair any damage to the
Subleased Premises caused by Subtenant's removal of its personal property,
furnishings and equipment. If the Subleased Premises are not so surrendered,
then Subtenant shall be liable to Sublandlord for all costs incurred by
Sublandlord in returning the Subleased Premises to the required condition, plus
interest thereon at the Interest Rate.
22. BROKER: Sublandlord and Subtenant each represent to the other that
they have dealt with no real estate brokers, finders, agents or salesmen in
connection with this transaction other than * representing Subtenant and *
representing Sublandlord. Subtenant agrees to indemnify and hold Sublandlord
harmless from and against all claims for brokerage commissions, finder's fees or
other compensation made by any
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other agent, broker, salesman or finder as a consequence of Subtenant's actions
or dealings with such other agent, broker, salesman, or finder.
23. NOTICES: Unless at least five (5) days' prior written notice is
given in the manner set forth in this paragraph, the address of each party for
all purposes connected with this Sublease shall be that address set forth below
their signatures at the end of this Sublease. All notices, demands or
communications in connection with this Sublease shall be properly addressed and
delivered as follows: (a) personally delivered; or (b) submitted to an overnight
courier service, charges prepaid; or (c) deposited in the mail (certified,
return-receipt requested, and postage prepaid). Notices shall be deemed
delivered upon receipt, if personally delivered, one (1) business day after
being so submitted to an overnight courier service and two (2) business days
after deposit in the United States mail, if mailed as set forth above. All
notices given to Master Landlord under the Master Lease shall be considered
received only when delivered in accordance with the Master Lease.
24. OTHER SUBLEASE TERMS:
A. INCORPORATION BY REFERENCE. Except as set forth below and except
as otherwise provided in this Sublease, the terms and conditions of this
Sublease shall include all of the terms of the Master Lease and such terms are
incorporated into this Sublease as if fully set forth herein, except that: (i)
each reference in such incorporated sections to "Lease" shall be deemed a
reference to this "Sublease"; (ii) each reference to the "Leased Premises" shall
be deemed a reference to the "Subleased Premises"; (iii) each reference to
"Landlord" shall be deemed a reference to "Sublandlord" and each reference to
"Tenant" shall be deemed a reference to "Subtenant", except as otherwise
expressly set forth herein; (iv) with respect to work, services, utilities,
electricity, repairs (or damage caused by Master Landlord), restoration,
insurance, indemnities, reimbursements, representations, warranties or the
performance of any other obligation of "Landlord" under the Master Lease,
whether or not incorporated herein, the sole obligation of Sublandlord shall be
to request the same in writing from Master Landlord as and when requested to do
so by Subtenant, and to use Sublandlord's reasonable efforts (not including the
payment of money, the incurring of any liabilities, or the institution of legal
proceedings) to obtain Master Landlord's performance; (v) with respect to any
obligation of Subtenant to be performed under this Sublease, wherever the Master
Lease grants to "Tenant" a specified number of days to perform its obligations
under the Master Lease (including, without limitation, curing any defaults),
except as otherwise provided herein, Subtenant shall have * to perform the
obligation or *, which ever allows Subtenant the greater amount of time; (vi)
with respect to any approval required to be obtained from the "Landlord" under
the Master Lease, such approval must be obtained from both Master Landlord and
Sublandlord, and Sublandlord's withholding of approval shall in all events be
deemed reasonable if for any reason Master Landlord's approval is not obtained;
(vii) in any case where the "Landlord" reserves or is granted the right to
manage, supervise, control, repair, alter, regulate the use of, enter or use the
Premises or any areas beneath, above or adjacent thereto, such reservation or
grant of right of entry shall be deemed to be for the benefit of both Master
Landlord and Sublandlord; (viii) in any case where "Tenant" is to indemnify,
release or waive claims against "Landlord", such indemnity, release or waiver
shall be deemed to run from Subtenant to both Master Landlord and Sublandlord;
(ix) in any case where "Tenant" is to execute and deliver certain documents or
notices to "Landlord", such obligation shall be deemed to run from Subtenant to
both Master Landlord and Sublandlord; and (x) the following modifications shall
be made to the Master Lease as incorporated herein:
(a) the following provisions of the Master Lease are not
incorporated herein: Sections 1 (except 1.M and 1.Q), 2, 3.1, 3.3, 3.5, 3.6, 4.5
(first sentence), 4.6 (last sentence), 4.11, 6.1 (second sentence and last two
sentences), 7.1 (fourth and fifth sentences), 7.5 (last sentence), 12.1, 13.2,
13.3
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(last sentence), 13.9, 13.11(subsections D, E and F only), 13.14, 13.15, Exhibit
C, "Bayside Technology Park Exterior Signage Standards" and "Option to Renew
Lease";
(b) only Master Landlord, not Sublandlord, shall get the benefit
of Section 12.4.
(c) references to "Initial Tenant Improvements" shall be
deleted;
(d) reference to * in Section 7.4(F) of the Master Lease shall
be changed to *;
(e) any right to abate rent provided to Subtenant through
incorporation of the provisions of the Master Lease shall not exceed the rent
actually abated under the Master Lease with respect to the Subleased Premises.
B. ASSUMPTION OF OBLIGATIONS. This Sublease is and at all times
shall be subject and subordinate to the Master Lease and the rights of Master
Landlord thereunder. Subtenant hereby expressly assumes and agrees: (i) to
comply with all provisions of the Master Lease incorporated herein; and (ii) to
perform all the obligations on the part of the "Tenant" to be performed under
the terms of the Master Lease incorporated herein with respect to the Subleased
Premises during the term of this Sublease. In the event the Master Lease is
terminated for any reason whatsoever, this Sublease shall terminate
simultaneously with such termination without any liability of Sublandlord to
Subtenant. In the event of a conflict between the provisions of this Sublease
and the Master Lease, as between Sublandlord and Subtenant, the provisions of
this Sublease shall control.
25. RIGHT TO CONTEST: If Sublandlord does not have the right to contest
any matter in the Master Lease due to expiration of any time limit that may be
set forth therein or for any other reason, then notwithstanding any
incorporation of any such provision from the Master Lease in this Sublease,
Subtenant shall also not have the right to contest any such matter.
26. PARKING: Subtenant shall have the nonexclusive right to use its pro
rata share of parking spaces serving the Master Premises subject to Section 4.5
of the Master Lease.
27. SIGNAGE: Subject to the requirements of the Master Lease (including,
without limitation, obtaining Master Landlord's consent) and subject to
Sublandlord's prior written approval as to the design, location and
specifications (which approval shall not be unreasonably withheld), Subtenant
shall have the right to install, at its sole cost and expense, signage at the
Subleased Premises permitted under the CC&Rs affecting the Subleased Premises
and permitted by the City of Fremont. Subject to the foregoing requirements and
approvals, Subtenant may remove, at Subtenant's expense, the wooden shipping and
receiving sign located on the northern part of the Property (as defined in the
Master Lease) near the Subleased Premises and replace it with its own signage.
28. SECURITY SYSTEM: Subtenant shall, at Subtenant's cost and expense,
use * for its security system and security service in the Subleased Premises.
29. EFFECTIVENESS OF MASTER LEASE: Sublandlord represents that (i) the
Master Lease is in full force and effect, (ii) that no default (beyond
applicable notice and cure periods) currently exists under the Master Lease and
(iii) to its current actual knowledge, no condition exists that with the giving
of notice and/or the passage of time would be a default under the Master Lease.
Sublandlord shall not voluntarily terminate the Master Lease without Subtenant's
prior written consent (except that Sublandlord may exercise any right to
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terminate the Master Lease set forth in the Master Lease including, without
limitation, its right to terminate the Master Lease in the event of a casualty).
30. CONDITIONS PRECEDENT: Notwithstanding anything to the contrary in
this Sublease, this Sublease and Sublandlord's obligations hereunder are
conditioned upon Sublandlord's receipt of the written consent of Master Landlord
to this Sublease. If Sublandlord does not receive such consent within * after
execution of this Sublease by Sublandlord, then Sublandlord may terminate this
Sublease by giving Subtenant written notice thereof, and upon such termination,
Sublandlord shall return to Subtenant its payment of prepaid rent and the
Security Deposit.
31. AMENDMENT: This Sublease may not be amended except by the written
agreement of all parties hereto.
32. COUNTERPARTS: This Sublease may be executed in one (1) or more
counterparts each of which shall be deemed an original but all of which together
shall constitute one (1) and the same instrument. Signature copies may be
detached from the counterparts and attached to a single copy of this Sublease
physically to form one (1) document.
33. DRAFTING PRESUMPTION: The parties acknowledge that this Sublease has
been agreed to by both the parties, that both Sublandlord and Subtenant have
consulted with attorneys with respect to the terms of this Sublease and that no
presumption shall be created against Sublandlord because Sublandlord drafted
this Sublease.
34. ENTIRE AGREEMENT: This Sublease constitutes the entire agreement
between the parties, and there are no binding agreements or representations
between the parties except as expressed herein. No subsequent change or addition
to this Lease shall be binding unless in writing and signed by the parties
hereto
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IN WITNESS WHEREOF, the parties have executed this Sublease as of the
day and year first above written.
SUBLANDLORD: SUBTENANT:
VA LINUX SYSTEMS, INC., STORAGEWAY, INC.
By: /s/ TODD B. SCHULL By: /s/ COLLEEN GRAY
------------------------------- -----------------------------------
Print Name: Todd B. Schull Print Name: Colleen Gray
----------------------- ---------------------------
Title: VP OF FINANCE AND CFO Title: VP OF FINANCE AND CFO
---------------------------- --------------------------------
Address: Address:
47071 Bayside Parkway 3501 West Warren Ave.
Fremont, CA 94538 Fremont, CA 94538
Attention: TODD B. SCHULL Attention: COLLEEN GRAY
------------------------ ----------------------------
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EXHIBIT C
Cubicles 259 (8x8 Teknion)
Chairs 80 (Sit On It)
wiring 4 cat 5 cables from each cube, office and conference room to the wiring
closet
Reception desk in lobby