1
SECOND AMENDMENT TO LEASE
(Lots 58 and 59)
This Second Amendment to Lease ("Second Amendment") is made and entered
into as of May 22, 1995 by and between Irish Leasing Corporation, a Texas
corporation ("Landlord"), and Cisco Systems, Inc., a California corporation
("Tenant").
WHEREAS, Landlord and Tenant have previously entered into that certain
Ground Lease dated February 28, 1995, pursuant to which Landlord is leasing to
Tenant those certain parcels of land located in San Jose, California as more
particularly described on Exhibit A attached hereto (the "Premises"), which
Ground Lease was amended by that certain First Amendment to Lease dated as of
May 1, 1995, by and between Landlord and Tenant (the Ground Lease, as so
amended, is referred to herein as the "Lease"); and
WHEREAS, Landlord and Tenant now wish to further amend the terms of the
Lease as more particularly described in this Second Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Amendment to Lease. The Landlord and Tenant hereby agree to amend
the Lease as hereinafter set forth and as set forth in other sections of this
Second Amendment.
(a) Section 2.33 of the Lease is hereby amended to read in its
entirety as follows:
2.33 Permitted Exceptions. "Permitted Exceptions" shall mean the
following: (1) the exceptions set forth in Exhibit B; (2) any exceptions
created or caused by Tenant or to which Tenant consents in writing; (3)
taxes and assessments not yet due and payable; (4) a deed of trust or
mortgage which secures a New Loan authorized pursuant to the terms of
Section 13.1(b); (5) the Tenant Deed of Trust; (6) all title defects,
liens, encumbrances, deeds of trust, mortgages, rights-of-way, and
restrictive covenants and conditions affecting the Land unless any of the
foregoing arise as a result of Landlord's actions or with Landlord's
written consent (unless such actions taken or consent given by Landlord
are requested in writing by Tenant pursuant to Sections 11.2, 20.1 or
20.2); (7) this Lease; (8) that certain Construction Deed of Trust,
Financing Statement, Security Agreement and Fixture Filing (With
Assignment of Rents and Leases) (the "Construction Deed of Trust") dated
as of even date herewith executed by Landlord, Tenant and Sumitomo Bank
of New York Trust Company ("SBNYTC"), as Trustee under that certain Trust
Agreement dated May 22, 1995 between Sumitomo Bank Leasing and Finance,
Inc. and SBNYTC ("SB Trust") for the benefit of the Sumitomo Bank,
Limited ("Sumitomo") and the Hongkong and Shanghai Banking Corporation
Limited ("HKS"); (9) that certain Deed of Trust, Financing Statement,
Security Agreement and Fixture Filing (with Assignment of Rents and
Leases)(the "Second Deed of Trust") dated as of even date
2
herewith executed by Landlord and Tenant for the benefit of SB Trust;
(10) that certain Absolute Assignment of Leases (the "HKS Assignment")
dated as of even date herewith executed by Landlord, SB Trust, Cisco, HKS
and Sumitomo; and (11) that certain Subordination Agreement (herein so
called) dated as of even date herewith and executed by Sumitomo, HKS, SB
Trust, Landlord and Tenant.
(b) The last sentence of Section 5.5 of the Lease is hereby amended to
read in its entirety as follows:
The entire Security Deposit (other than amounts withheld against
Base Rent due hereunder), plus any accrued and unpaid interest required
to be paid thereon pursuant to this Lease, shall be returned to Tenant at
the end of the Term; provided, however, that, notwithstanding anything to
the contrary contained in this Lease, Landlord shall have no obligation
to return the Security Deposit to Tenant in the event of a foreclosure,
deed in lieu of foreclosure, or other exercise of remedies by the
beneficiaries or trustees under the Tenant Deed of Trust, the
Construction Deed of Trust, the Second Deed of Trust, the HKS Assignment,
or any other Mortgage on the Premises caused by Tenant to which Tenant
consents in writing.
(c) Section 20.5 of the Lease is hereby amended to read in its
entirety as follows:
20.5 Recourse Obligations. Landlord agrees that during the Term of
this Lease, except for the SGA Loan, Landlord will not incur any
indebtedness for borrowed money or any other material obligations to
which the holder or obligee thereof has recourse against Landlord to
satisfy the same without Tenant's prior written consent, which consent
Tenant may withhold in its sole discretion.
(d) Section 20.6 of the Lease is hereby amended to read in its
entirety as follows:
20.6 Default Under Authorized Loan. Landlord shall not, without
Tenant's express prior written consent, default under any Authorized
Loan, or any loan documents relating to such Authorized Loan, where such
default is not caused, directly or indirectly by, or arising, directly or
indirectly as a result of (a) a breach of any of Tenant's obligations
under this Lease, under the Pledge Agreement securing the UBS Loan or
under any documents relating to any Authorized Loan, or (b) the
occurrence of a default or an Event of Default under the Construction
Deed of Trust, the Second Deed of Trust or the HKS Assignment.
2. Existence of Permitted Exceptions. Tenant hereby acknowledges that
the existence of any Permitted Exception, and the exercise of any rights or
remedies granted to any third party pursuant to any Permitted Exceptions shall
not constitute a breach by Landlord under the terms of Section 20.3 or any other
provision of the Lease.
3. Quiet Enjoyment. The first sentence of Section 18.1 of the Lease
is hereby amended by adding the following language at the end of such sentence:
3
"and subject to the rights of a Fee Mortgagee under the Construction Deed
of Trust, and/or the Second Deed of Trust, the rights of the "Assignees"
under the HKS Assignment, and the rights of any Fee Mortgagee under any
Authorized Loan."
4. Net Lease. The last sentence of Section 21.21 of the Lease is
hereby to read in its entirety as follows:
Tenant agrees to reimburse Landlord and/or SGA, within ten days following
receipt of any written demand therefor, for all fees, accrued but unpaid
interest, late charges, prepayment penalties, costs, expenses,
indemnification obligations, and other amounts charged to Landlord and/or
SGA by UBS, the holder of any Authorized Loan, the holders or
beneficiaries of the Construction Deed of Trust and the Second Deed of
Trust, and the "Assignees" under the HKS Assignment pursuant to the terms
and conditions of the UBS Note, any Authorized Loan, the Construction
Deed of Trust, the Second Deed of Trust, the HKS Assignment and the
Subordination Agreement."
5. Consent to Encumbrances. Tenant hereby consents to Landlord's
execution, delivery and recording of the Construction Deed of Trust, the Second
Deed of Trust, the HKS Assignment and the Subordination Agreement, and all
documents, instruments and agreements executed in connection therewith by
Landlord.
6. Terms. All terms used in this Second Amendment with their initial
letter capitalized which are specially defined in the Lease (as amended by this
Second Amendment) shall have the same meanings in this Second Amendment as in
the Lease (as amended by this Second Amendment).
7. Continuing Obligations. Except as modified by this Second
Amendment, the terms of the Lease remain in full force and effect. To the extent
of any conflict between the terms of the Lease and the terms of this Second
Amendment, the terms of this Second Amendment shall control.
8. Counterparts. This Second Amendment may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which taken together shall comprise but a single instrument.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Second
Amendment as of the date first set forth above.
4
IRISH LEASING CORPORATION,
a Texas corporation
By: /s/GREG ENGLAND
-----------------------
Its: /s/VICE PRESIDENT
-------------------
CISCO SYSTEMS, INC.,
a California corporation
By: /s/LARRY R. CARTER
-----------------------
Its:
-------------------
5
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 ages 49 and 50.
APN: 97-53-18,22