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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 A 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: XXXX XXXXXXX
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Name: /s/XXXX XXXXXXX
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Its: VICE PRESIDENT
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"TENANT"
CISCO SYSTEMS, INC., a California
corporation
By: /s/XXXX XXXXXXXX
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Name:
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Its:
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By: /s/XXXXX X. XXXXXX
-----------------------------
Name:
-----------------------
Its:
------------------------
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EXHIBIT A
DESCRIPTION OF LAND
REAL PROPERTY in the City of San Xxxx, County of Santa Xxxxx, State of
California, described as follows:
PARCEL ONE:
All of Parcel 2, as shown on that certain Map filed for record in the office of
the Recorder of the County of Santa Xxxxx, State of California on July 13, 1983,
in Book 514 of Maps page(s) 47 and 48.
PARCEL TWO:
All of Lot 54, 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
Xxxxx, State of California on December 21, 1983 in Book 522 of Maps, at pages 49
and 50.
APN: 97-53-14 and 23
EXHIBIT A
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EXHIBIT B
PERMITTED EXCEPTIONS
1. Bond for REASSESSMENT DISTRICT #93-210 CONSOLIDATED REFUNDING, as
follows:
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 Xxxxxx 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 Xxxx 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 Xxxx.
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 Xxxx, 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 Xxxx, 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
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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 Xxxx, a municipal corporation
And : Oakmead-San Xxxx, a California general partnership
and Oakmead-San Xxxx 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 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 Xxxx 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 Xxxx, a California general partnership
Recorded : June 21, 1984 in Book 1649, page 543, Official
Records
An instrument entitled, "Designation of Approving Agent," whereby
Xxxxxxx 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 JULY 19, 1989 IN BOOK L024, PAGE 587,
Official Records. An Instrument entitled "Assignment and Assumption of
Certain Rights under Declaration of Covenants, Conditions and
Restrictions for Oakmead-San Xxxx"
Between : Oakmead-San Xxxx, a California general partnership
and Xxxxxxx Properties, Inc., a California
corporation
Recorded : August 10, 1989 in Book LO52, page 1001 and page
1011, Official Records.
Partial Termination as to other property recorded September 18. 1989 in
Book L097, page 1662, Official Records.
11. 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 505, Official
Records.
EXHIBIT B
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Said instrument also provides for the levy of assessments, the lien of
which are stated to be subordinate to the lien of a First Mortgage or
First Deed of Trust made in good faith and for value.
MODIFICATION thereof recorded JULY 19, 1989 IN BOOK L024, PAGE 587,
Official Records.
An Instrument entitled "Assignment and Assumption of Certain Rights
under Declaration of Covenants, Conditions and Restrictions for
Oakmead-San Xxxx"
Between : Oakmead-San Xxxx, a California general partnership
and Xxxxxxx Properties, Inc., a California
corporation
Recorded : August 10, 1989 in Book L052, page 1001 and page
1011, Official Records.
12. EASEMENT as shown on the map of Tract 7559 filed in Book 522 of Maps,
pages 49 and 50.
Purpose : Public Service Easement
Affects : The Northwesterly 8 Feet and the Westerly corner
of Lot 59 of Pan:el One
13. EASEMENT as shown on the map of Tract 7559 filed in Book 522 of Maps,
pages 49 and 50.
Purpose : Landscape Easement
Affects : The Southeasterly 18 feet and the Southerly corner
of Lot 58 of Parcel One; and the Northwesterly 18
feet and the Westerly corner of Lot 59 of Parcel
One
14. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Communication Facilities
Granted to : Pacific Xxxx
Recorded : February 21, 1984 in Book 1319, page 486, Official
Records
Affects : The Southwesterly 10 feet of Lot 58 of Parcel One;
the Southwesterly 10 feet, the Northwesterly 8
feet and the Westerly corner Of Lot 59 Of Parcel
One; and the Southwesterly 10 feet of Parcel Three
15. AGREEMENT on the terms and conditions contained therein,
For : Gas and Electric Service
Between : Pacific Gas and Electric Company, city of San Xxxx
And : Oakmead-San Xxxx
As disclosed by a Memorandum of Agreement
Recorded : February 25, 1985 in Book J271, page 37, Official
Records.
EXHIBIT B
3.
