THIS AMENDMENT NO.
1 TO LEASE (this “Amendment”) is made as of the
25 th
day of August, 2008
(“Effective Date”) by and between WISCONSIN
PLACE OFFICE LLC, a Delaware limited liability company
(“Landlord”), and CAPITALSOURCE FINANCE
LLC, a Delaware limited liability company
(“Tenant”).
WHEREAS, Landlord
and Tenant have previously entered into that certain Office Lease
Agreement dated as of the 27th day of April, 2007 (the
“Original Lease”) with respect to One Hundred
Sixty Thousand Six Hundred Thirty-Four (160,634) square feet of
rentable area (“Original Premises”) in the
office building (“Building”) that is part of the
Project known as Wisconsin Place, as more particularly described in
the Original Lease;
WHEREAS, Landlord
and Tenant have agreed to amend the Original Lease to eliminate the
portion of the Original Premises on the eighth (8th) and ninth
(9th) floors of the Building and to add space on the third (3rd)
floor of the Building to the Original Premises;
WHEREAS, as part
of Tenant’s plans for the Leasehold Work, Tenant has
requested that Landlord construct equipment shafts that will occupy
twelve (12) square feet of rentable area on the first (1st)
floor of the Building and thirty-one (31) square feet of
rentable area on each of floors four (4) through nine
(9) of the Building for a total of one hundred ninety-eight
(198) square feet of rentable area (collectively, the
“Shaft Space”), to be located on floors that are
not otherwise part of the Premises under the Lease, as amended by
this Amendment;
WHEREAS, Landlord
and Tenant wish to amend the Original Lease to add the Shaft Space
to the Premises; and
WHEREAS, Landlord
and Tenant wish to amend certain other terms and conditions of the
Original Lease as set forth herein.
NOW, THEREFORE, in
consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, the parties hereto, intending to be
legally bound hereby, covenant and agree as follows:
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1.
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Defined Terms
. Except as otherwise
provided herein, all capitalized terms used herein shall have the
same meanings as provided for such terms in
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Wisconsin
Place
CapitalSource Lease
1
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the
Original Lease. The Original Lease, as modified and amended by this
Amendment shall be referred to herein as the
“Lease.” All references to the
“Lease” in the Original Lease and this Amendment
are deemed to mean the Original Lease, as modified and amended by
this Amendment.
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2.
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Premises . Section 1.1 of the Original
Lease is hereby deleted in its entirety and replaced with the
following:
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“1.1
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, for the term and upon the terms, conditions, covenants
and agreements herein provided, a total of One Hundred Thirty-Four
Thousand Seven Hundred Ninety-Three (134,793) square feet of
rentable area, comprising Fifty-Six Thousand Four Hundred
Seventy-Eight (56,478) square feet of rentable area on the second
(2nd) floor of the Building, Twenty-Six Thousand Thirty-Nine
(26,039) square feet of rentable area on each of the third (3rd),
tenth (10 th
) and eleventh (11
th ) floors of the Building, and the equipment
shaft space (the “Shaft Space”) comprising
twelve (12) square feet of rentable area on the first (1st)
floor of the Building and thirty-one (31) square feet of
rentable area on each of the fourth (4th), fifth (5th), sixth
(6th), seventh (7th), eighth (8th) and ninth (9th) floors of the
Building (all of the foregoing being collectively, the
“Premises” ). In addition, the Premises shall
include rentable area on the P-l level of the Garage (the
“UPS Space” and the “Electric
Room”) and the Terrace Vestibule (as hereinafter
defined), except that the UPS Space, the Electric Room, and the
Terrace Vestibule shall be excluded for purposes of any
calculations of Tenant’s Proportionate Share, any
calculations of the amount of square feet Tenant is leasing or
occupying for purposes of the thresholds for signage rights
pursuant to Article 10, rights to object to property
management pursuant to Section 14.1 and 14.9, rights to object
to change of Building address pursuant to Section 23.2,
Tenant’s competitor rights pursuant to Section 25.25,
and similar thresholds, and Tenant’s right to Improvements
Allowance or Additional Allowance (as such terms are defined in
Exhibit B). The location and configuration of the Premises are
outlined on Exhibit A-1 (second floor),
Exhibit A-2 (floors 3, 10 and 11), Exhibit
A-3 (Shaft Space on first floor),
Exhibit A-4 (Shaft Space on floors 4 through 9),
and Exhibit A-5 (UPS Space and Electric Room)
attached to this Amendment and made a part hereof.” Prior to
the Lease Commencement Date, Landlord and Tenant shall mutually
agree in writing upon the amount of rentable square feet of area of
the UPS Space and Electric Room, which shall be approximately four
hundred and fifty (450) square feet in the UPS Space and
approximately fifty (50) square feet in the Electric Room and
which spaces shall be
Wisconsin
Place
CapitalSource Lease
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otherwise
suitable for Tenant’s requirements. The actual square
footages shall be determined based on the design of the areas.
Tenant shall be responsible for all costs and expenses incurred by
Landlord in relocating the current location of the bike racks on
the P-1 level to accommodate the UPS Room and Electric
Room.
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3.
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Pursuant to Section 1.2(b) of
the Original Lease, Tenant is entitled to construct the Terrace.
Tenant’s plan for the construction of the Terrace also
includes a stair and elevator vestibule containing Five Hundred
Fifty-Seven (557) square feet of rentable area on the roof of
the portion of the Building known as “Retail C” (the
“Terrace Vestibule” ). The Terrace Vestibule
shall not be included as part of the rentable area of the Premises
for purposes of determining Base Rent. In addition, for purposes of
calculating “Tenant’s Proportionate Share”
pursuant to Section 4.1(b) of the Original Lease, the Terrace
Vestibule and the Terrace shall not be included as part of the
rentable area of the Premises as the numerator, and the Terrace
Vestibule and the Terrace shall not be included as part of the
total rentable square feet of the Office Portion of the Building as
the denominator of such fraction.
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4.
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The
first sentence of Section 3.1 is hereby deleted and replaced
with the following:
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“During the Lease Term, Tenant
shall pay to Landlord as base rent (used interchangeably as
“Base Rent” or “base rent” )
for the Premises, without set off, deduction or demand (except as
otherwise expressly provided in Section 3.6 of this Lease)
(a) an amount per annum equal to the product of Thirty-Four
and 50/100ths Dollars ($34.50) multiplied by the total number of
square feet of rentable area in the Premises (other than the UPS
Space and the Terrace Vestibule) as set forth in
Section 1.1 (as the same may be modified in accordance
with Section 1.3 ), plus (b) an amount per annum
equal to the product of Twenty Dollars ($20.00) multiplied by the
total number of square feet of rentable area in the UPS Space,
which amounts shall be increased as provided in
Section 3.2 below and may be abated as provided in
Section 2.3(a), if applicable.
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5.
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The
rent chart set forth in Section 3.2 of the Lease is hereby
deleted in its entirety and replaced with the following:
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Annual Base Rent
Per
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Annual Base Rent
per
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Rentable Square Foot
for
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Rentable Square
Foot
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Premises other than
UPS
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for UPS and
Electric
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Lease Year
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Space and Terrace
Vestibule
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Room Space
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1
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$20.00
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2
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$20.50
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Wisconsin
Place
CapitalSource Lease
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Annual Base Rent
Per
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Annual Base Rent
per
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Rentable Square Foot
for
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Rentable Square
Foot
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Premises other than
UPS
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for UPS and
Electric
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Lease Year
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Space and Terrace
Vestibule
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Room Space
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3
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$21.01
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4
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$21.54
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5
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$22.08
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6
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$22.63
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7
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$23.20
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8
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$23.78
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9
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$24.37
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10
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$24.98
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11
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$25.60
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12
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$26.24
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13
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$26.90
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14
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$27.57
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15
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$28.26
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6.
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Section 5.1(a) of the Original
Lease is modified to substitute the words and number “One
Million Six Hundred Sixty-Four Thousand Three Hundred Fifty-Six and
40/100 Dollars ($1,664,356.40)” for the words and number
“One Million Nine Hundred Eighty-Three Thousand Four Hundred
Twenty-Eight and 32/100ths Dollars ($1,983,428.32)” in
defining the amount of the Security Deposit. In the second sentence
of Section 5.1(a), the figure “134,793” is
substituted for the figure “160,634.” Landlord
acknowledges that Tenant has heretofore posted with Landlord a
letter of credit in the amount of $1,983,428.32 in satisfaction of
the Security Deposit requirement under the Lease. Landlord further
acknowledges that the amount of the Security Deposit is hereby
being reduced to $1,664,356.40, and Landlord agrees to deliver such
authorizations or instructions to the issuer of the letter of
credit as may be required to effect such reduction in the amount of
the letter of credit.
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7.
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Subsection 10.1(b) of the Original
Lease is hereby deleted in its entirety and replaced with the
following:
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“(b)
Landlord agrees that Tenant, so long as CapitalSource Finance LLC
(or a Successor or Affiliate of CapitalSource Finance LLC) is
leasing at least 82,000 square feet of rentable area in the
Building and occupying at least 56,000 square feet of rentable area
in the Building, at Tenant’s sole cost and expense (provided
that the Allowance may be applied to the cost thereof), shall have
the nonexclusive right to affix one (1) sign identifying
CapitalSource Finance LLC or a Successor or Affiliate of
Wisconsin
Place
CapitalSource Lease
4
CapitalSource
Finance LLC ( “Tenant’s Plaque Sign” ) on
a plaque at the main entrance to the Building. In addition,
Landlord agrees that Tenant, so long as CapitalSource Finance LLC
(or a Successor or Affiliate of CapitalSource Finance LLC) is
leasing at least 134,595 square feet of rentable area in the
Building, unless Tenant is leasing less than 134,595 rentable
square feet because Landlord has exercised a recapture right
pursuant to Article VII hereof, in which event the
rentable square footage of the space recaptured by Landlord shall
be deducted from the foregoing 134,595 rentable square foot
threshold, and occupying at least 108,556 square feet of rentable
area in the Building (for purposes of the foregoing requirement,
Tenant shall be deemed to be “occupying” space that is
subleased to Relationship Subtenants and to Affiliates of Tenant),
at Tenant’s sole cost and expense (subject to the application
of the Tenant Improvements Allowance), shall have the exclusive
right to affix one (1) sign identifying CapitalSource Finance
LLC or a Successor or an Affiliate of CapitalSource Finance LLC (
“Tenant’s Exterior Sign” or
“Exterior Sign” ) which shall be located either
(at Tenant’s election and subject to the terms set forth
herein) (1) on the exterior wall of the Building outside the
second (2nd) floor facing Wisconsin Avenue, or (2) on the exterior
wall at the top of the Building on a face of the Building other
than the side that faces Western Avenue. If Tenant’s
Exterior Sign is located on the second (2nd) floor, such sign shall
be located in the area shown on the diagram attached to this
Amendment as Exhibit B. The color, size, style,
location, placement, method of installation, material finish and
configuration of Tenant’s Plaque Sign and Tenant’s
Exterior Sign (collectively, “Tenant’s
Signs” ) (A) shall be subject to Landlord’s
prior written approval, which approval shall not be unreasonably
withheld, conditioned or delayed, provided that Landlord shall be
deemed t
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