exv10w23



 





Exhibit 10.23




SUBLEASE




(Arastra, Inc.)




          THIS SUBLEASE (this “Sublease”) is made as November 30, 2006, by and between THOMAS WEISEL
PARTNERS GROUP INC., a Delaware corporation (“Sublessor”) and ARASTRA, INC., a California
corporation (“Sublessee”).




          The parties enter this Sublease on the basis of the following facts, understandings and
intentions:




          A. Sublessor, as successor in interest to Thomas Weisel Partners Group LLC, a Delaware limited
liability company, is the tenant under that certain Lease dated as of February 24, 2000 (the
“Original Lease”), as amended by that certain First Amendment to Office Lease, dated March 21,
2000, and as amended by that certain Second Amendment to Office Lease dated December 18, 2000 (as
amended, the “Master Lease”) between Sublessor and MIDDLEFIELD PARK, a California general
partnership (“Landlord”), of premises more particularly described therein located on the third
floor of Building A, 275 Middlefield Road, Menlo Park, California (the “Building”);




          B. Sublessor represents that a true and correct copy of the Master Lease is attached hereto as
Exhibit A;




          C. The premises to be sublet pursuant to this Sublease includes approximately five thousand
thirteen (5013) net rental square feet of space consisting of a portion of the 3rd Floor
of the Building (hereinafter the “Subleased Premises, as more particularly set forth on
Exhibit B attached hereto; and




          D. Sublessor desires to sublease to Sublessee the Subleased Premises, and Sublessee desires to
sublease the Subleased Premises from Sublessor pursuant to the terms and conditions hereof.




          NOW, THEREFORE, the parties agree as follows:




          1. Agreement to Sublease. Subject to the terms and conditions of this Sublease and to
Landlord’s consent, Sublessor hereby subleases to Sublessee and Sublessee subleases and hires from
Sublessor the Subleased Premises, together with all of Sublessor’s right, title and interest in and
to the personal property of Sublessor listed and scheduled on Exhibit C attached hereto
(the “Personal Property”), for a term commencing on the later to occur of: (i) Sublessor’s delivery
of possession of the Subleased Premises, or (ii) Landlord’s consent to this Sublease as set forth
in Section 13 below, or (iii) January 1, 2007 (the “Commencement Date”) and ending on December 17,
2010.




          2. Rent and Additional Charges.




          a. Subject to the provisions of Section 3.c, Sublessee shall pay to Sublessor as rent (“Base
Rent”) for the Subleased Premises in advance on the first day of each calendar month during the
term of this Sublease commencing on the Commencement Date Fourteen Thousand Six Hundred Fifty-Seven
and 15/100 Dollars ($14,657.15). On each anniversary of the Commencement Date (the “Adjustment
Date”), the Base Rent shall be adjusted upward by three percent (3%) of the Base Rent payable for
the immediately preceding year.




          b. Sublessee shall also be responsible, and pay, for any additional charges and expenses
(“Additional Rent”) imposed by Landlord pursuant to the terms of the Master Lease applicable to
the Subleased Premises. In addition, Sublessee shall be responsible for all other expenses related
specifically to Sublessee’s use and occupancy of the Premises (e.g., after-hours HVAC, additional
cleaning, excess utilities, etc.).




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          4. Master Lease Terms.




          a. Except as expressly amended hereby, this Sublease is subject to all of the terms and
conditions of the Master Lease and Sublessee hereby covenants and agrees to perform all of the
obligations of Sublessor as Tenant under the Master Lease to the extent said terms and conditions
are applicable to the Subleased Premises and Sublessee shall be entitled to all of the rights of
Sublessor under the Master Lease to the extent said terms and conditions are particularly
applicable to the Subleased Premises, including a pro rata share of parking and signage rights.
The rights and obligations of the parties under the Master Lease are hereby imposed upon the
parties hereto with respect to the Subleased Premises, provided the words “Landlord” and “Tenant”
in the Master Lease will be deemed to refer to Sublessor and Sublessee, respectively. Sublessee
shall be entitled to receive all services to be rendered by Landlord to the Sublessor under the
Master Lease applicable to the Subleased Premises; provided Sublessor shall have no obligation to
provide such services, but only to cooperate with Sublessee and use commercially reasonable, good
faith efforts to cause Landlord to provide such services. Sublessee shall not commit, nor permit
to be committed on the Subleased Premises, any act or omission which would violate any term or
condition of the Master Lease or be cause for termination of the Master Lease by Landlord.
Sublessee recognizes that Sublessor is not in a position to render any services or to perform any
of the obligations required of Landlord under the terms of the Master Lease. Sublessee agrees that
performance by Sublessor of its obligations under this Sublease may be conditioned upon performance
by Landlord of its corresponding obligations under the Master Lease, and Sublessor will not be
liable to Sublessee for any default of Landlord under the Master Lease or any sublessee under any
other sublease. Upon Sublessee’s request, Sublessor shall make reasonable efforts to cause
Landlord to perform its obligations under the Master Lease. Such efforts shall include, without
limitation, upon Sublessee’s request, (a) immediately notifying Landlord of its non-performance
under the Master Lease and requesting that Landlord perform its obligations under the Master Lease,
and/or (b) after the date that Sublessee subleases the entire Subleased Premises, assigning
Sublessor’s rights under the Master Lease to Sublessee to the extent necessary to permit Sublessee
to institute legal proceedings against Landlord to obtain the performance of Landlord’s obligations
under the Master Lease; provided, however, that if Sublessee commences a lawsuit or other action,
Sublessee shall pay all costs and expenses incurred in connection therewith.




          b. Sublessor represents to Sublessee that the Master Lease represents that entire agreement
between Landlord and Sublessor respecting the subject matter thereof, is in full force and effect,
and that no default or event that, with the passing of time or the giving of notice or both, would
constitute a default, exists on the part of Sublessor, or, to Sublessor’s knowledge, the Landlord.
Sublessor agrees to maintain the Master Lease in full force and effect, except to the extent that
any failure to maintain the Master Lease is due to the failure of Sublessee to comply with any of
its obligations under this Sublease. Sublessor shall not amend or modify the Master Lease in such
a manner as to materially adversely affect Sublessee’s use of the Subleased Premises or increase
the obligations or decrease the rights of Sublessee hereunder, without the prior written consent of
Sublessee, which may be granted or withheld at Sublessee’s sole discretion.




          5. Condition of Subleased Premises. Notwithstanding anything to the contrary in the
Master Lease, Sublessee accepts the Subleased Premises in their “AS IS” condition, provided
Sublessor shall have the carpets professionally cleaned. Sublessee acknowledges and agrees that
neither Sublessor nor Landlord has undertaken any obligation to make or agreed to make any
alterations or improvements to the Subleased Premises for Sublessee’s use or occupancy thereof.
Any alterations and addition to the Subleased Premises made by Sublessee shall be made in
accordance with the Master Lease, and shall be subject to prior written approval by Sublessor and
Landlord as provided therein. At the expiration of the Sublease Sublessee shall leave the
Subleased Premises in broom clean condition and otherwise in the condition called for in the Master
Lease. Notwithstanding the foregoing, in no event shall Sublessee be required to remove or replace
any alterations, additions or improvements that were constructed prior to the Commencement Date of
this Sublease.




          6. Deposit. Concurrent with Sublessee’s execution of this Sublease, Sublessee shall
deliver to Sublessor a deposit (the “Security Deposit”) in the amount of Fifty Eight Thousand Six
Hundred Twenty-Eight Dollars ($58,628.60). The deposit shall be returned to Sublessee, less any
amounts used by Sublessor to cure defaults by Sublessee hereunder, within 30 days following of the
expiration of the term, without interest. Sublessor shall have no obligation to keep the Security
Deposit in a separate account, and shall have the right to apply the
 

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deposit to cure any default of Sublessee hereunder, in which case Sublessee shall promptly
replenish the Security Deposit to its original amount.




          7. Default. The occurrence of any of the following shall constitute a default by
Sublessee under this Sublease:




          a. The failure to perform any covenant, liability or obligation, as and when performance is
due, under this Sublease, where such failure continues in excess of three (3) days following notice
of any monetary default or where such failure continues in excess of twenty (20) days following
notice of any non-monetary default, unless the same cannot reasonably be cured within said twenty
(20) day period, in which event Sublessee shall be deemed to not be in default if Sublessee
commences to cure within 20 days and thereafter diligently prosecutes such cure to completion; and




          b. The occurrence of any Event of Default, as that term is defined in the Master Lease.




          The occurrence of any default by Sublessee under this Sublease shall entitle Sublessor to each and
all of the rights and remedies afforded Landlord upon the occurrence of an Event of Default under
the Master Lease. If Sublessor fails to pay any sum of money to Landlord, or fails to perform any
other act on its part to be performed under the Master Lease or this Sublease, then Sublessee 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 payable by Sublessor to
Sublessee upon demand.




          8. Indemnity. Sublessee agrees to defend, indemnify and hold Sublessor and Landlord
free and harmless from and against any and all claims, loss liability or demand for injury or death
to persons or damages to property occurring in, on or about the Subleased Premises, except for such
claims, loss, liability or demand which are due solely to the gross negligence or willful
misconduct of Sublessor or its employees or agents.




          9. Insurance. As at the Commencement Date, Sublessee agrees to secure, at its
expense, the public liability and property damage insurance with respect to the Subleased Premises
required to be obtained by Tenant under the Master Lease from an insurer meeting the standards
thereof. Sublessor and Landlord shall be named as additional insureds in said policy or policies,
and Sublessee agrees to provide Sublessor and Landlord with a certificate of insurance or other
suitable evidence of said insurance. Sublessee hereby waives on behalf of itself and on behalf of
its insurers any and all rights of recovery against Sublessor, Landlord and the officers,
employees, agents and representatives of Sublessor or Landlord on account of lessor damage
occasioned to Sublessee or its property or the properties of others under its control caused by
fire or any of the extended coverage risks described in the Master Lease to the extent that such
loss or damage is insured against under any insurance policy in force at the time of such loss or
damage. Sublessee shall give notice to its insurance carrier or carriers of the foregoing waiver
of subrogation.




          10. Notices. All notices or demands of any kind required or desired to be given by
Sublessor or Sublessee hereunder shall be in writing and shall be deemed delivered forty-eight (48)
hours after depositing the notice or demand in the United States mail, certified or registered,
postage prepaid, addressed to the Sublessor or Sublessee respectively, at the addresses set forth
after their signatures at the end of this Sublease. In the event any written default notice from
the Landlord is delivered to, or is otherwise received by, Sublessor, Sublessor shall, as soon
thereafter as possible, but in any event within three (3) days, deliver a copy of such notice to
Sublessee.




          11. Right of Direct Tenancy. Sublessor reserves the right to assign its interest
hereunder to Landlord, in which case this Sublease shall become a direct lease between Landlord and
Sublessee. At Landlord’s election , in the event that the new lease accurately reflects the terms
and conditions of this Sublease, Sublessee shall thereafter execute such new lease.




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          12. Entire Agreement. All prior understandings and agreements between Sublessor and
Sublessee are supersede by and merged in this Sublease, which alone fully and completely sets forth
the understanding of Sublessor and Sublessee. This Sublease may not be amended or modified in any
respect whatsoever except by an instrument in writing signed by Sublessor and Sublessee and
consented to in writing by Landlord.




          13. Consent of Landlord. Landlord’s written consent to this Sublease in accordance
with the terms of the Master Lease is a condition precedent to the validity of the Sublease. If
Landlord’s consent has not been obtained in a form acceptable to Sublessee, in its reasonable
discretion, and a copy of that consent delivered to Sublessee by the thirtieth (30th) day following
the date of this Sublease, each party shall thereafter have the ongoing right, subject to the terms
of this Section 13, to terminate this Sublease pursuant to a notice (the “Termination Notice”) so
stating delivered to the other party. If Sublessor fails to deliver to Sublessee the consent of
Landlord to this Sublease within ten (10) days following delivery of the Termination Notice (the
“Termination Date”), this Sublease shall automatically terminate and the parties shall be released
from any further obligations under this Sublease and the prepaid Sublease Rent and Security Deposit
shall be promptly returned to Sublessee. If, however, Sublessor delivers to Sublessee the consent
of Landlord on or before the Termination Date, the condition subsequent set forth in this Section
13 shall be satisfied and this Sublease shall continue in full force and effect. In the event that
Sublessee desires to make any alterations or improvements, or otherwise take any action that will
require the consent of Landlord and Sublessor, then Sublessor shall (i) use reasonable and diligent
efforts to obtain such consent of Landlord, and (ii) shall not unreasonably withhold its consent.




          14. Broker. Subtenant and Sublandlord represent that they have not dealt
with any broker in connection with this Amendment other than Cornish and Carey Commercial (the
“Broker”). Each party agrees to indemnify, defend and hold harmless the other from and against
any liability, claims, suits, demands, judgments, costs, losses, interest and expenses (including
reasonable attorneys’ fees and expenses) which the indemnified party may be subject to or suffer by
reason of any claims made by any person, firm or corporation other than the Brokers for any
commission, expense or other compensation as a result of the execution and delivery of this
Amendment, which is based on alleged conversations or negotiations by said person, firm or
corporation with the indemnifying party. Sublandlord shall pay Cornish and Carey Commercial a
brokerage commission pursuant to a separate agreement.




          IN WITNESS WHEREOF, the parties hereto have executed this Sublease on the day and year
first above written.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SUBLESSOR	 	 	 	SUBLESSEE
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	THOMAS WEISEL PARTNERS GROUP INC.	 	 	 	ARASTRA, INC.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BY:

	 	/s/ Shaugn Stanley
	 	 	 	BY:
	 	/s/ Kenneth Duda	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	ITS: Partner
	 	 	 	 	 	ITS: Acting President	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	One Montgomery Tower, 37th Floor	 	 	 	 	 	 	 	 	 	 	 	 
	San Francisco, CA 94104	 	 	 	 	 	 	 	 	 	 	 	 
	Attn: Real Estate Notices	 	 	 	 	 	 	 	 	 	 	 	 







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