SUBLEASE AGREEMENT
Exhibit
10.5.4
THIS SUBLEASE AGREEMENT (this “Sublease”) is made and entered into as of the 25th
day of July, 2008, by and between FREMONT INVESTMENT & LOAN, a California industrial bank
(“Sublandlord”), and CAPITALSOURCE BANK, a California industrial bank (“Subtenant”).
WITNESSETH:
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 0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxx,
Xxxxxxxxxx (the “Building”);
WHEREAS, Subtenant desires to sublease from Sublandlord, and Sublandlord desires to sublease
to Subtenant, certain space situated on the first (1st) 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.
2. Term.
(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.
3. Base Rent.
(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.
6. The Prime Lease.
(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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and Sublandlord and their respective officers, directors or partners, as the case may be,
and the respective agents and employees of each of them. Upon Sublandlord’s request,
Subtenant shall furnish Sublandlord with certificates of insurance evidencing that Subtenant
is carrying the insurance required to be carried by Subtenant hereunder; and
(v) Subtenant shall not do anything or suffer or permit anything to be done which
could result in a default under the Prime Lease or permit the Prime Lease to be cancelled
or terminated.
(c) Notwithstanding anything contained herein or in the Prime Lease that may appear to be to
the contrary, Sublandlord and Subtenant hereby agree as follows:
(i) Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or
permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by
operation of law or otherwise, or permit the use of the Subleased Premises or any part
thereof by any persons other than Subtenant and Subtenant’s employees, agents and
contractors or sublet the Subleased Premises or any part thereof, without the prior written
consent of Landlord and Sublandlord.
(ii) Neither rental nor other payments hereunder shall xxxxx by reason of any damage to
or destruction of the Subleased Premises, the Master Premises, or the Building or any part
thereof, unless, and then only to the extent that, rental and such other payments actually
xxxxx under the Prime Lease with respect to the Subleased Premises on account of such event;
(iii) Subtenant shall not have any right to any portion of the proceeds of any award
for a condemnation or other taking, or a conveyance in lieu thereof, of all or any portion
of the Building, the Master Premises or the Subleased Premises;
(iv) Subtenant shall not have any right to exercise or have Sublandlord exercise any
option under the Prime Lease, including, without limitation, any option to extend the term
of the Prime Lease or lease additional space;
(v) To the extent any of Sublandlord’s claims against the Landlord under the Prime
Lease with respect to the Subleased Premises are assignable and Sublandlord fails to assert
such claims against the Landlord within ten (10) days of Subtenant’s written request,
Sublandlord assigns such claims to Subtenant; and
(vi) Subject to Section 6(a) above, as between Sublandlord and Subtenant, in the event
of any conflict between the terms, conditions and provisions of the Prime Lease and of this
Sublease, the terms, conditions and provisions of this Sublease shall, in all instances,
govern and control.
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(d) It is expressly understood and agreed that Sublandlord does not assume and shall not
have any of the obligations or liabilities of Landlord under the Prime Lease and that
Sublandlord
is not making the representations or warranties, if any, made by Landlord in the Prime Lease.
With respect to work, services, repairs and restoration or the performance of other
obligations
required of Landlord under the Prime Lease, Sublandlord’s sole obligation with respect thereto
shall be to request the same, upon written request from Subtenant, and to use reasonable
efforts
to obtain the same from Landlord, at no expense to Sublandlord. Sublandlord shall not be
liable
in damages, nor shall rent xxxxx hereunder, for or on account of any failure by Landlord to
perform the obligations and duties imposed on it under the Prime Lease. Similarly, Subtenant
does not assume any of the obligations or liabilities of Sublandlord under the Prime Lease
with
respect to the Master Premises, to the extent such obligations or liabilities are more
extensive
than the obligations and liabilities undertaken by Subtenant hereunder with respect to the
Subleased Premises.
(e) Nothing contained in this Sublease shall be construed to create privity of estate or
contract between Subtenant and Landlord, except the agreements of Subtenant in Sections 10 and
11 hereof in favor of Landlord, and then only to the extent of the same.
(f) Subtenant acknowledges that it has received a true copy of the Prime Lease, that it
has reviewed the Prime Lease, and that it is familiar with the contents thereof.
7. Default by Subtenant.
(a) Upon the happening of any of the following:
(i) Subtenant fails to pay any Base Rent on the date it is due; provided, however,
Subtenant shall not be in default hereunder unless such failure is not cured within five (5)
days after Sublandlord’s written notice of such failure, it being acknowledged and agreed
that Sublandlord shall not be obligated to provide such written notice to Subtenant more
than once during the term of this Sublease and any subsequent failure by Subtenant to pay
Base Rent when due shall be a default hereunder with no notice or cure period required
hereunder;
(ii) Subtenant fails to pay additional rent or any other amount due from Subtenant
hereunder and such failure continues for five (5) days after notice thereof from Sublandlord
to Subtenant;
(iii) Subtenant fails to perform or observe any other covenant or agreement set forth
in this Sublease and such failure continues for twenty (20) days after notice thereof from
Sublandlord to Subtenant; provided, however, that if such failure is not reasonably capable
of being cured within such 20-day period notwithstanding the exercise of diligent efforts by
Subtenant and Subtenant diligently commences to cure such failure and diligently pursues
such cure, then the twenty (20) day period set forth herein shall be extended for such time
as is necessary to cure such failure; or
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(iv) any other event occurs which involves Subtenant or the Subleased Premises and
which would constitute a default under the Prime Lease if it involved Sublandlord or the
Master Premises;
Subtenant shall be deemed to be in default hereunder, and Sublandlord may exercise against
Subtenant, without limitation of any other rights and remedies available to it hereunder or at law
or in equity, any and all rights and remedies of Landlord set forth in the Prime Lease in the event
of a default by Sublandlord in its capacity as Tenant pursuant to the Prime Lease.
(b) In the event Subtenant fails or refuses to make any payment or perform any covenant or
agreement to be performed hereunder by Subtenant and such failure or refusal is not cured within
the applicable cure period set forth in Section 7(a) hereof, Sublandlord may make such payment or
undertake to perform such covenant or agreement (but shall not have any obligation to Subtenant to
do so). In such event, amounts so paid and amounts expended in undertaking such performance,
together with all costs, expenses and reasonable attorneys’ fees incurred by Sublandlord in
connection therewith, together with interest on all of the foregoing at the rate specified in
Section 4(d) above as applicable to late payments of rent, shall be due on demand as additional
rent hereunder.
8. Nonwaiver. Failure of Sublandlord to declare any default or delay in taking any
action in connection therewith shall not waive such default. No receipt of moneys by
Sublandlord from Subtenant after the termination in any way of the term or of Subtenant’s
right
of possession hereunder or after the giving of any notice shall reinstate, continue or extend
the
term or affect any notice given to Subtenant or any suit commenced or judgment entered prior
to
receipt of such moneys.
9. Cumulative Rights and Remedies. All rights and remedies of Sublandlord under this
Sublease shall be cumulative and none shall exclude any other rights or remedies allowed by
law.
10. Indemnity. Subject to Paragraph 11 below, Subtenant shall indemnify and hold
Sublandlord, its employees and agents harmless from and against all costs, damages, claims,
liabilities and expenses (including reasonable attorneys’ fees) suffered by or claimed against
Sublandlord, directly or indirectly, based on or arising out of any negligent act or omission
of
Subtenant or any agent, employee, or contractor of Subtenant. Subject to Paragraph 11 below,
Sublandlord shall indemnify and hold Subtenant harmless from and against all costs, damages,
claims, liabilities and expenses (including reasonable attorneys’ fees) suffered by or claimed
against Subtenant, directly or indirectly, based on or arising out of any negligent act or
omission
of Sublandlord or any agent, employee, or contractor of Sublandlord. Neither party shall have
any liability to the other for consequential or punitive damages with respect to this
Sublease.
11. Waiver of Subrogation. Anything in this Sublease to the contrary notwithstanding,
Sublandlord and Subtenant each hereby waive any and all rights of recovery, claims, actions or
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causes of action against the other and the officers, directors, partners, agents and employees of
each of them, and Subtenant hereby waives any and all rights of recovery, claims, actions or causes
of action against Landlord and its agents and employees, for any loss or damage that may occur to
the Subleased Premises or the Master Premises, or any improvements thereto, or any personal
property of any person therein or in the Building, by reason of fire, the elements or any other
cause insured against (or required by the Prime Lease or this Sublease to be insured against) under
valid and collectible fire and extended coverage insurance policies, regardless of cause or origin,
including negligence, except in any case which would render this waiver void under law.
12. Brokerage Commissions. Each party hereby represents and warrants to the other
that it has had no dealings with any real estate broker or agent in connection with this
Sublease,
and that it knows of no real estate broker or agent who is or might be entitled to a
commission in
connection with this Sublease. Each party agrees to protect, defend, indemnify and hold the
other harmless from and against any and all claims inconsistent with the foregoing
representations and warranties for any brokerage, finder’s or similar fee or commission in
connection with this Sublease, if such claims are based on or relate to any act of the
indemnifying party which is contrary to the foregoing representations and warranties.
13. Successors and Assigns. This Sublease shall be binding upon and inure to the
benefit of the successors and assigns of Sublandlord and shall be binding upon and inure to
the
benefit of the successors of Subtenant and, to the extent any such assignment may be approved,
Subtenant’s assigns. The provisions of Section 6(e) and Sections 10 and 11 hereof shall inure
to
the benefit of the successors and assigns of Landlord.
14. Entire Agreement. This Sublease contains all the terms, covenants, conditions and
agreements between Sublandlord and Subtenant relating in any manner to the rental, use and
occupancy of the Subleased Premises. No prior agreement or understanding pertaining to the
same shall be valid or of any force or effect. The terms, covenants and conditions of this
Sublease cannot be altered, changed, modified or added to except by a written instrument
signed
by Sublandlord and Subtenant.
15. Notices. Notices and demands required or permitted to be given by either party to
the
other with respect hereto or to the Subleased Premises shall be in writing and shall be served
either by personal delivery with a receipt requested, by overnight air courier service or by
United
States certified or registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to Sublandlord:
0000 Xxxx Xxxxxxxx Xxxxxxx
Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Executive Vice President
and General Counsel
Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Executive Vice President
and General Counsel
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If to Subtenant:
0000 Xxxxxxx Xxxxxx
Twelfth Floor
Chevy Chase, Maryland, 20815
Attention: Xxxxxx Xxxxxxx, Chief Legal Officer
Twelfth Floor
Chevy Chase, Maryland, 20815
Attention: Xxxxxx Xxxxxxx, Chief Legal Officer
Notices and demands shall be deemed to have been given three (3) business days after mailing, if
mailed, or, if made by personal delivery or by overnight air courier service, then upon such
delivery. Either party may change its address for receipt of notices by giving notice to the other
party.
16. Authority of Subtenant, etc. Subtenant represents and warrants to Sublandlord that
this Sublease has been duly authorized, executed and delivered by and on behalf of Subtenant
and constitutes the valid, enforceable and binding agreement of Subtenant.
17. Examination. Submission of this instrument for examination or signature by
Subtenant does not constitute a reservation of or option for the Subleased Premises or in any
manner bind Sublandlord, and no lease, sublease or obligation of Sublandlord shall arise until
this instrument is signed and delivered by Sublandlord and Subtenant.
18. Parking. Subtenant shall have the right to use one hundred forty-nine (149) [4.5
spaces per 1,000 square feet of rentable area] of the unreserved nonexclusive parking spaces
provided by Landlord to Sublandlord for parking at the Building.
19. Counterparts. This Sublease may be executed in several counterparts, but all
counterparts shall constitute but one and the same instrument.
[signatures on following page]
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IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease as of the date
aforesaid.
| ATTEST/WITNESS: | Sublandlord: | |||||||||||||||
| FREMONT INVESTMENT & LOAN, a California industrial bank |
||||||||||||||||
By:
|
Xxxxx Xxxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||||||||
| Its: | Xxxxxxx X. Xxxxxxx EVP and Chief Administrative Officer |
|||||||||||||||
| Subtenant: | ||||||||||||||||
| CAPITALSOURCE BANK, a California industrial bank |
||||||||||||||||
By:
|
Xxxx Havilland | By: | Xxxxxx X. Xxxxxxx | |||||||||||||
| Its: | Executive Vice President | |||||||||||||||
