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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("First Amendment") is made and entered
into as of May 1, 1995, by and between IRISH LEASING CORPORATION, a Texas
corporation ("Landlord"), and CISCO SYSTEMS, INC., a California corporation
("Tenant").
THIS FIRST AMENDMENT IS ENTERED INTO upon the basis of the following
facts, understandings and intentions.
A. Landlord and Tenant entered into that certain Lease dated
February 28, 1995 ("Lease"), pursuant to which Landlord is leasing to Tenant
that certain land located in San Jose, California, as more particularly
described in the Lease and on Exhibit A attached hereto and incorporated herein
by this reference ("Premises"). Any capitalized terms used but not defined in
this First Amendment which are defined in the Lease shall have the meaning
ascribed in the Lease.
B. Landlord and Tenant now desire to amend the terms of the
Lease, as more particularly described in this First Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
1. Equity Funded Amount. Section 2.10 is hereby deleted, and is
replaced with the following:
2.10 Equity Funded Amount. "Equity Funded Amount" shall
mean that portion of the Funded Amount equal to the Funded
Amount minus the Senior Funded Amount and which shall be an
amount equal to fifteen percent (15%) of the Funded Amount.
2. Lease Rate. Section 2.23 is hereby deleted, and is replaced
with the following:
2.23 Lease Rate. "Lease Rate" shall mean interest at the
rate of the product of 0.850 times the then-effective LIBOR
Rate, plus .0045, per annum.
3. Lease Rate. Section 2.26 is hereby deleted, and is replaced
with the following:
2.26 LIBOR Rate. "LIBOR Rate" shall mean the LIBOR
interest rate as defined in that certain Schedule I,
Additional Terms and Conditions of Credit Arrangement between
SGA and UBS dated May 1, 1995, relating to the UBS Loan
("Schedule I"), or as defined in a subsequent Authorized Loan.
4. Interest Rate Selection. Section 5.1(b) is hereby deleted,
and is replaced with the following:
(b) Interest Rate Selection. The parties acknowledge
that the interest rate applicable under the UBS Loan (or other
Authorized Loan) shall affect the amount of Base Rent payable
by Tenant hereunder. Therefore, Tenant shall have the right,
by written notice to UBS (or the holder of any Authorized
Loan), SGA and Landlord, to designate the interest period to
be selected from time to time by SGA pursuant to Schedule I
(or other Authorized Loan). Tenant acknowledges that the
rates available to be selected under the UBS Loan after the
first partial calendar month of the Term are 1, 2, 3, 6, 9 or
12-month LIBOR rates. In the event that Tenant fails to give
such written notice to UBS (or other holder of an Authorized
Loan), SGA and Landlord prior to the applicable deadline for
selection of such interest period pursuant to the
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terms of Schedule I (or other Authorized Loan), Tenant shall be
deemed to have selected an interest period of one month for the
UBS Loan (or other Authorized Loan).
5. Further Mortgages or Encumbrances by Landlord.
The first sentence of Article 13, Section 13.1, subparagraph (b)
Authorized Loan that begins with "Tenant has approved . . ." and ends with ". .
all documents related to the UBS Loan" is hereby deleted and replaced with the
following:
Tenant has approved the terms of the loan ("UBS Loan") to be
made by UBS to SGA which shall be evidenced by that certain
Tranche B Promissory Note dated as of the Lease Commencement
Date by SGA in favor of UBS ("UBS Note"), and further
evidenced and/or secured by (a) that certain General Terms and
Conditions of Credit Arrangement between SGA and UBS, (b) that
certain Schedule 1 Additional Terms and Conditions of Credit
Arrangements between SGA and UBS, (c) that certain Pledge
Agreement, as amended by Rider No. 1 thereto, made by Tenant
in favor of UBS, and (d) certain documents (including, without
limitation a promissory note and related documents) evidencing
a loan ("SGA Loan") from SGA to Landlord in the principal
amount of the UBS Note, all dated as of the Lease Commencement
Date; provided, however, that Tenant, Landlord and SGA reserve
the right to approve, in their sole discretion, the final form
of all documents related to the UBS Loan.
6. Option to Purchase Premises. (a) In Section 19.1(a),
Purchase Option , the two (2) sentences beginning with "The purchase price
("Purchase Price") . . ." on line 8 of Section 19.1(a) and ending with ". . .
this Purchase Option" on line 26 of Section 19.1(a) are hereby deleted in their
entirety and the following inserted in their place:
The purchase price ("Purchase Price") for the portion of the
Premises which Tenant elects to purchase shall be (i) the
then-existing Funded Amount applicable to the portion of the
Premises which Tenant elects to purchase (determined in a pro
rata basis on the basis of the area being purchased), as the
same may be reduced from time to time, plus (ii) the amount of
any prepayment premium and all other fees, costs, and expenses
due to any holder of an Authorized Loan in connection with
such loan (to the extent not already paid pursuant to Section
21.21 hereof). Tenant shall be entitled to a credit against
the Purchase Price in an amount equal to the sum of (i) the
principal balance(s) of any Authorized Loan and/or Fee
Mortgage existing immediately prior to the closing under this
Purchase Option if such Authorized Loan and/or Fee Mortgage
are not fully repaid and all documents reflecting the same are
not cancelled and removed from the public records on or prior
to the closing under this Purchase Option, plus (ii) the
amount of the Security Deposit (or, in the event of a purchase
of a portion of the Premises, a pro rata portion of the
Security Deposit), and, upon closing under this Purchase
Option, Landlord shall be released from Landlord's obligation
to return the Security Deposit set forth in Section 5.5
hereof.
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(b) In Section 19.1(a), Purchase Option , following the
sentence beginning with "Landlord . . ." on line 36 of Section 19.1(a) and
ending with ". . . expenses related thereto" on line 40 of Section 19.1(a), the
following sentence is inserted:
Notwithstanding the foregoing, Landlord agrees to, upon
Tenant's written demand, assign the UBS Loan or any other
Authorized Loan and its obligations thereunder to Sumitomo
Bank Leasing and Finance, Inc., a Delaware corporation
("SBLF"); provided that SBLF shall first expressly assume
Landlord's obligations under the UBS Loan (or any other
Authorized Loan) in writing and hold Landlord harmless from
any liabilities arising after the date of such assignment.
7. Form of Transaction; Certain Tax Matters.
a. Section 21.2(a)(ii) is hereby deleted, and is replaced
with the following:
(a) a financing arrangement (and
not a "true lease") for Federal, state and local
income tax and local property tax purposes.
b. Section 21.2(b) is hereby deleted, and is replaced
with the following:
Landlord and Tenant agree that, in accordance with
their intentions and the substance of the
transactions contemplated hereby, Tenant (and not
Landlord) shall be treated as the owner of the
Premises for Federal, state, and local income tax and
property tax purposes and this Lease shall be treated
as a financing arrangement. Tenant shall be entitled
to take any deduction, credit allowance or other
reporting, filing or other tax position consistent
with such characterizations. Landlord and Tenant
shall not file any Federal, state or local income tax
or property tax returns, reports or other statements,
or take any other actions, in a manner which is
inconsistent with the foregoing provisions of this
Section 21.2, unless required to do so by applicable
law or Legal Requirement.
c. Section 21.2(c) is hereby deleted, and is replaced
with the following:
Each party acknowledges that it has retained
accounting, tax and legal advisors to assist it in
structuring this Lease and neither party is relying
on any representations of the other regarding the
proper treatment of this transaction for accounting,
income tax, property tax or any other purpose.
Nothing in this Section 21.2(c) shall increase or
diminish any liability or obligation of the parties
that otherwise exists pursuant to this Lease.
8. Exhibits. Exhibit B is hereby deleted and the attached
Exhibit B inserted in its place.
9. Counterparts. This First Amendment may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall comprise but a single instrument.
10. Existing Lease. Except to the extent specifically amended
hereby, all terms and conditions of the Lease remain in full force and effect.
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[SIGNATURE PAGE TO FIRST AMENDMENT TO LEASE]
IN WITNESS WHEREOF, Landlord and Tenant have executed this First
Amendment as of the date and year first written above.
"LANDLORD"
IRISH LEASING CORPORATION,
a Texas corporation
By: /s/ GREG ENGLAND
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Name: GREG ENGLAND
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Its: VICE PRESIDENT
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"TENANT"
CISCO SYSTEMS, INC., a California
corporation
By: /s/ John T. Chambers
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Name:
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Its:
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By: /s/ Larry R. Carter
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Name:
-----------------------------
Its:
-----------------------------
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EXHIBIT A
DESCRIPTION OF LAND
REAL PROPERTY in the City of San Jose, County of Santa Clara, State of
California, described as follows:
Lots 58 and 59, as shown upon that certain map entitled, "Tract No. 7559",
which Map was filed for record in the office of the Recorder of the County of
Santa Clara, on December 21, 1983 in Book 522 of Maps, at pages 49 and 50.
APN: 97-53-18,22
EXHIBIT A
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EXHIBIT B
PERMITTED EXCEPTIONS
1. Bond for City of San Jose, Reassessment District No. 93-210 1993
Consolidated Refunding
2. THE LIEN of supplemental taxes, if any, assessed as a result of
transfer of interest and/or new construction, said supplemented taxes
being assessed pursuant to Chapter 3.5 commencing with Section 75 of
the California Revenue and Taxation Code, for which no Notice of
Assessment has been issued, as of the date herein.
3. THE EFFECT of the Rincon de los Esteros Project Redevelopment Plan and
Ordinances Nos. 17306, 19686. 19835, 20677, 20958. 21417, 21496,
21903, 22660, 22412, 22761, 22761.1 and 22961, 23703, 23732, 23761 and
23934 of the City of San Jose as recorded and as disclosed by
documents recorded July 11, 1975 in Book B502, Page 711; August 6, 1979
in Book E699, Page 245; August 6, 1979 in Book E699. Page 277;
December 21, 1979 in Book F37, Page 585; October 8, 1981 in Book G382,
Page 605; July 28, 1982 in Book G929, Page 703; September 14, 1983 in
Book H892, Page 200; January 10, 1984 in Book 1220, Page 271; January
6, 1992 in Book L996, Page 508, all of Official Records, and as
disclosed by information provided by the Redevelopment Agency of the
City of San Jose.
4. AN EASEMENT affecting the portion of said land and for the purpose
stated herein and incidental purposes, shown or dedicated by the map
of Tract 7408 filed in Book 506 of Maps, pages 24, 25 and 26.
Purpose : PUBLIC SERVICE EASEMENT
Affects : THE SOUTHWESTERLY 10 FEET OF PARCELS ONE, TWO AND THREE
AND THE NORTHWESTERLY 8 FEET OF PARCEL TWO
5. EASEMENT as shown on the filed map of Tract 7408 filed in Book 506 of
Maps, pages 24-26 and incidents thereto
Purpose : LANDSCAPE EASEMENT
Affects : THE SOUTHWESTERLY 20 FEET OF PARCEL ONE, TWO AND THREE
AND THE NORTHWESTERLY 18 FEET OF PARCEL TWO
6. EASEMENT for the purposes stated herein and incidents thereto
Purpose : THE INSTALLATION, MAINTENANCE AND OPERATION OF ALL
LANDSCAPING PLANT FORMS, IRRIGATION SYSTEMS,
RETAINING WALLS, AND DECORATIVE WALKWAY PAVING NOW
EXISTING OR HEREINAFTER TO BE CONSTRUCTED
Granted to : CITY OF SAN JOSE, A MUNICIPAL CORPORATION OF THE STATE
OF CALIFORNIA
Recorded : MAY 27, 1983 IN BOOK H590, PAGE 649, OFFICIAL RECORDS
Affects : THE SOUTHWESTERLY 20 FEET OF PARCEL ONE, TWO AND THREE
AND THE NORTHWESTERLY 18 FEET OF PARCEL TWO.
7. EASEMENT for the purposes stated herein and incidents thereto
Purpose : THE INSTALLATION, MAINTENANCE AND OPERATION OF ALL
LANDSCAPING PLANT FORMS, IRRIGATION SYSTEMS,
RETAINING WALLS, AND DECORATIVE WALKWAY PAVING NOW
EXISTING OR HEREINAFTER TO BE CONSTRUCTED
Granted to : CITY OF SAN JOSE, A MUNICIPAL CORPORATION OF THE STATE
OF CALIFORNIA
Recorded : MAY 27, 1983 IN BOOK H590, PAGE 652, OFFICIAL RECORDS
Affects : THE WESTERLY CORNER OF PARCEL TWO
EXHIBIT B
1.
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8. AGREEMENT on the terms and conditions contained therein,
For : THE INSTALLATION AND MAINTENANCE OF LANDSCAPE
IMPROVEMENTS
Between : CITY OF SAN JOSE, A MUNICIPAL CORPORATION
And : OAKMEAD-SAN JOSE, A CALIFORNIA GENERAL PARTNERSHIP AND
OAKMEAD-SAN JOSE SIGN AND LANDSCAPE MAINTENANCE
ASSOCIATION, A CALIFORNIA NON PROFIT MUTUAL BENEFIT
CORPORATION
Recorded : MAY 27, 1983 IN BOOK H590, PAGE 662, OFFICIAL RECORDS.
9. EASEMENT for the purposes stated herein and incidents thereto
Purpose : THE CONSTRUCTION, INSTALLATION, REPAIR AND MAINTENANCE
OF INTERLOCKING PAVERS, RETAINING WALLS AND SIGNS, AND
FOR PEDESTRIAN AND VEHICULAR ACCESS AS NECESSARY OR
DESIRABLE THERETO, BUT SUBJECT TO THE OBLIGATION OF THE
ASSOCIATION, ITS SUCCESSORS AND ASSIGNS, TO PROMPTLY
REPAIR ANY DAMAGE TO SAID IMPROVEMENTS LYING WITHIN THE
SIGN AND LANDSCAPE EASEMENTS RESULTING FROM THE
ASSOCIATION'S ACTIVITIES THEREON
Granted to : OAKMEAD-SAN JOSE SIGN AND LANDSCAPE MAINTENANCE
ASSOCIATION, A NON-PROFIT MUTUAL BENEFIT CORPORATION
Recorded : JUNE 3, 1983 IN BOOK H604, PAGE 322, OFFICIAL RECORDS
Affects : THE WESTERLY CORNER OF PARCEL TWO
10. LIMITATIONS, covenants, conditions, restrictions, reservations,
exceptions, terms, liens or charges, but deleting restrictions, if
any, based on race, color, religion or national origin contained in
the document recorded June 3, 1983 in Book H604, page 334, Official
Records.
CONTAINS mortgagee protection clause.
MODIFICATION thereof recorded January 26, 1984 in Book 1257, page 252,
Official Records.
A Notice of Amendment of Design Guidelines
Executed by : OAKMEAD-SAN JOSE, A CALIFORNIA GENERAL PARTNERSHIP
Recorded : JUNE 21, 1984 IN BOOK 1649, PAGE 543, OFFICIAL RECORDS
An instrument entitled, "Designation of Approving Agent," whereby
Kimball Small Properties, a California corporation was designated
approving agent under the CC&R's and Design Guidelines,
Recorded : APRIL 29, 1988 IN BOOK K517, PAGE 940, OFFICIAL RECORDS
MODIFICATION thereof recorded OCTOBER 18, 1988 IN BOOK K721, PAGE 265,
Official Records.
An instrument entitled, "Assignment of Grantor's Rights under
Declaration of Covenants, Conditions and Restrictions for Oakmead-San
Jose and Removal of Approving Agent,"
Dated : OCTOBER 18, 1988
Between : OAKMEAD-SAN JOSE, A CALIFORNIA GENERAL PARTNERSHIP AND
OAKMEAD ASSOCIATES, A CALIFORNIA GENERAL PARTNERSHIP
Recorded : OCTOBER 18, 1988 IN BOOK K721, PAGE 295, OFFICIAL
RECORDS
Partial Termination as to other property recorded September 18, 1989 in
Book L097, page 1662, Official Records.
EXHIBIT B
2.