THIS SUBLEASE
AGREEMENT (this “Sublease” ) is made and entered
into as of the 25 th day of July, 2008, by and between FREMONT
INVESTMENT & LOAN, a California industrial bank
(“Sublandlord”) , and CAPITALSOURCE BANK,
a California industrial bank
(“Subtenant”).
WHEREAS, by that
certain Standard Office Lease dated April 23, 2004, as
modified by a certain Notice of Lease Term Dates and by a certain
Lease Amendment No. 1 dated as of August, 2004, and by a
certain Lease Amendment No. 2 dated as of
November , 2004, and by a certain Third Amendment to
Standard Office Lease dated as of November 15, 2005
(collectively, the “Prime Lease” ) , AEW
LT Brea Imperial Centre, LLC (“Landlord”) leases
to Sublandlord certain premises (the “Master
Premises” ) in the building located at 2727 East Imperial
Highway, Brea, California (the
“Building”);
WHEREAS, Subtenant
desires to sublease from Sublandlord, and Sublandlord desires to
sublease to Subtenant, certain space situated on the first
(1 st
) floor of the Building, consisting
of approximately thirty-nine thousand seven hundred forty-four
(39,744) square feet of rentable area, as outlined on
Exhibit A attached hereto (the “Subleased
Premises” ) , all upon the terms and subject to
the conditions and provisions hereinafter set forth; and
WHEREAS, the
Subleased Premises consist of thirty-seven and 97/100 percent
(37.97%) of the Master Premises (the “Subtenant’s
Pro Rata Share” ).
NOW, THEREFORE, in
consideration of the foregoing and of the mutual covenants and
promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, Sublandlord and Subtenant hereby agree as
follows:
1.
Demise; Use . Sublandlord hereby subleases to Subtenant
and Subtenant hereby subleases from Sublandlord the Subleased
Premises for the term and rental and upon the other terms and
conditions hereinafter set forth, to be used and occupied by
Subtenant solely for general office use and for no other purpose.
The subleasing of the Subleased Premises includes reasonable use,
in common with Sublandlord, of the conference rooms, reception
area, kitchens/pantries, mail rooms and similar support facilities
in the Master Premises.
(a) The term
of this Sublease shall commence (the “Commencement
Date”) on the date hereof, and, unless sooner terminated
pursuant to the provisions hereof, shall continue through
January 31, 2009, after which, unless Subtenant gives thirty
(30) days’ prior written notice to Sublandlord, this
Sublease shall continue in force as a Sublease from month-to-month.
In such
event, this
Sublease shall thereafter be terminable by Subtenant, as of the end
of any calendar month, upon at least thirty (30) days’
prior written notice of termination delivered by Subtenant to
Sublandlord. In no event, however, shall the Sublease continue
beyond August 31, 2009, regardless whether or not any notice
of termination is delivered by Subtenant to Sublandlord, without
the written consent of Sublandlord, which consent shall not be
unreasonably withheld. If the personnel to be employed by Subtenant
who currently occupy offices in the Master Premises (collectively,
the “Subtenant’s Employees”) are not yet
all located within the Subleased Premises as of the Commencement
Date, then for the period from the Commencement Date through the
date on which all of the Subtenant’s Employees are located
within the Subleased Premises, the Subtenant’s Employees
shall have the license to continue to occupy their existing offices
within the Master Premises, together with the nonexclusive right to
use the conference rooms, reception area, kitchens/pantries, mail
rooms and similar support facilities in the Master Premises.
Notwithstanding the forgoing, following written request from
Sublandlord, Subtenant shall relocate all of the Subtenant’s
Employees to the Subleased Premises within thirty (30) days of
such written request. If the Prime Lease terminates or is
terminated for any reason whatsoever, then this Sublease shall
terminate simultaneously therewith.
(b) Notwithstanding
anything in this Sublease to the contrary, Subtenant shall have the
right to terminate this Sublease at any time, without fee or
penalty, upon delivering at least thirty (30) days’
prior written notice of such early termination to
Sublandlord.
(a) Subtenant
shall pay to Sublandlord base annual rental (“Base
Rent”) for the Subleased Premises in an amount equal to
the Subtenant’s Pro Rata Share of the Base Rent (as defined
in the Prime Lease) payable by Sublandlord pursuant to the Prime
Lease, as such Base Rent may be adjusted from time to time pursuant
to the Prime Lease. Base Rent shall be due and payable in equal
monthly installments. Each such installment shall be due and
payable in advance on the first day of each calendar month of the
term hereof. If the term of this Sublease commences on a day other
than the first day of a month or ends on a day other than the last
day of a month, Base Rent for such month shall be prorated;
prorated Base Rent for any such partial first month of the term
hereof shall be paid on the date on which the term
commences.
(b) The Base
Rent and any additional rent shall be paid to Sublandlord at its
address set forth in Section 15(b) below or at such other place as
Sublandlord may designate by notice to Subtenant. Nothing set forth
herein shall be deemed to limit any right of setoff or recoupment
that either party may have against the other.
4.
Additional Rent; Payments; Interest .
(a) In
addition to the Base Rent described above, Subtenant shall pay to
Sublandlord additional rent in an amount equal to Subtenant’s
Pro Rata Share of the additional rent payable by Sublandlord as a
result of increases in Real Estate Taxes and Operating Expenses (as
defined in the Prime Lease) pursuant to the Prime Lease.
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(b) In
addition to the Base Rent described above, Subtenant shall pay to
Sublandlord as additional rent all other amounts payable by
Sublandlord under the Prime Lease which are attributable to the
Subleased Premises or attributable to Subtenant, its agents,
employees, customers or invitees, and such amounts shall not be
limited to Subtenant’s Pro Rata Share. By way of example and
not by way of limitation, charges by Landlord for furnishing air
conditioning or heating to the Subleased Premises at times in
addition to those certain times specified in the Prime Lease, costs
incurred by Landlord in repairing damage to the Building caused by
an employee, agent, customer or invitee of Subtenant, increased
insurance premiums due as a result of Subtenant’s use of the
Subleased Premises, and amounts expended or incurred by Landlord on
account of any default by Subtenant which gives rise to a default
under the Prime Lease would be amounts payable by Subtenant
pursuant to this Section 4(b).
(c) In
addition to the Base Rent described above, Subtenant shall pay to
Sublandlord as additional rent all of the costs of maintaining and
operating the electric generator (including, but not limited to,
fuel costs) which provides electric power to the wire room located
in the Subleased Premises, and such costs shall not be limited to
Subtenant’s Pro Rata Share.
(d) In
addition to the Base Rent described above, Subtenant shall pay to
Sublandlord $9,936 per month as additional rent for utilities in
the Subleased Premises.
(e) Each
amount due pursuant to Sections 4(a), (b), (c) and
(d) above and each other amount payable by Subtenant hereunder
shall be due and payable on the date on which any such amount is
due and payable under the Prime Lease.
(f) All
amounts other than Base Rent payable to Sublandlord under this
Sublease shall be deemed to be additional rent due under this
Sublease. All past due installments of Base Rent and additional
rent shall bear interest from the date due until paid at the rate
per annum equal to three percent (3%) in excess of any interest
rate that is applicable to late payments pursuant to the Prime
Lease, unless a lesser rate shall then be the maximum rate
permissible by law with respect thereto, in which event said lesser
rate shall be charged. All past due installments of Base Rent and
additional rent shall be subject to the same late charges as are
applicable to late payments under the Prime Lease.
5.
Condition of Subleased Premises; Construction of Improvements;
Maintenance of Subleased Premises .
(a) Subtenant’s
taking possession of the Subleased Premises shall be conclusive
evidence as against Subtenant that the Subleased Premises were in
good order and satisfactory condition when Subtenant took
possession. No promise of Sublandlord to alter, remodel or improve
the Subleased Premises and no representation respecting the
condition of the Subleased Premises or the Building have been made
by Sublandlord to Subtenant, and Subtenant shall accept delivery of
the Subleased Premises in their “as is” condition. Upon
the expiration of the term hereof, or upon any earlier termination
of the term hereof or of Subtenant’s right to possession,
Subtenant
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shall surrender
the Subleased Premises in at least as good condition as at the
commencement of the term hereof, ordinary wear and tear
excepted.
(b) Subtenant
at Subtenant’s sole cost and expense shall maintain all light
fixtures and replace all bulbs and tubes in the Subleased Premises,
to the extent such maintenance is not Landlord’s obligation
under the Prime Lease.
(c) Sublandlord
shall leave in place in the Subleased Premises during the term of
this Sublease all furniture, shelving, built-ins, and similar items
currently situated in the Subleased Premises. At the expiration or
sooner termination of the term of this Sublease, Subtenant shall
restore such items to Sublandlord in the condition existing as of
the date of this Sublease, reasonable wear and tear
excepted.
(a) This
Sublease and all rights of Subtenant hereunder and with respect to
the Subleased Premises are subject and subordinate to the terms,
conditions and provisions of the Prime Lease. Subtenant hereby
assumes and agrees to perform faithfully and be bound by, with
respect to the Subleased Premises, all of Sublandlord’s
obligations, covenants, agreements and liabilities under the Prime
Lease and all terms, conditions, provisions and restrictions
contained in the Prime Lease. All of the terms, provisions,
covenants and conditions of the Prime Lease are incorporated herein
by reference and hereby made a part hereof.
(b) Without
limitation of the foregoing:
(i) If Subtenant
desires to take any action with respect to the Subleased Premises
or otherwise and the Prime Lease would require that Sublandlord
obtain the consent of Landlord before undertaking any action of the
same kind, Subtenant shall not undertake the same without the prior
written consent of Landlord and Sublandlord.
(ii) Without
limiting the generality of the foregoing, Subtenant shall not make
any changes, alterations or additions in or to the Subleased
Premises without the prior consent of Landlord and Sublandlord,
which consent of Sublandlord shall not be unreasonably withheld,
conditioned or delayed. Any removal of such changes, alterations or
modifications required by Landlord or the provisions of the Prime
Lease shall be performed by Subtenant at Subtenant’s sole
cost; !
(iii) Except as
otherwise provided herein, Sublandlord shall have all rights,
privileges, options, reservations and remedies with respect to the
Subleased Premises granted or allowed to or held by Landlord under
the Prime Lease;
(iv) Subtenant
shall maintain insurance of the kinds and in the amounts required
to be maintained by Sublandlord under the Prime Lease with respect
to the Subleased Premises. All policies of liability insurance
shall name as additional insureds Landlord
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