FIFTH AMENDMENT TO BUILDING LEASE
Published on August 21, 1996
EXHIBIT 99.4
Recording Requested By
and When Recorded, Return to:
Mayer, Brown & Platt
350 South Grand Avenue
25th Floor
Los Angeles, California 90071-1563
Attention: Leslie T. Tedrow
(213) 229-9500
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FIFTH AMENDMENT TO BUILDING LEASE
THIS FIFTH AMENDMENT TO BUILDING LEASE (this "Fifth Amendment") is entered
---------------
into as of August 1, 1996, between CIBC INC., a Delaware corporation ("Lessor"),
------
and AMD INTERNATIONAL SALES & SERVICE, LTD., a Delaware corporation ("Lessee").
------
RECITALS
--------
A. For purposes of the financing by Lessor of the acquisition of a certain
Building, Lessor and Lessee entered into a certain Building Lease, dated as of
September 22, 1992, and recorded on September 22, 1992, as Instrument No.
11550954, in the Official Records of Santa Clara County, California, as amended
by that certain First Amendment to Building Lease, dated as of December 22,
1992, and recorded on January 5, 1993, as Instrument No. 11720034, in Official
Records of Santa Clara County, California (such Building Lease, as so amended,
is referred to herein as the "First Amended Building Lease"), pursuant to which
----------------------------
Lessor leases the Building (as defined therein) to Lessee and Lessee leases the
Building from Lessor.
B. The First Amended Building Lease was modified by a certain Second
Amendment to Building Lease, dated as of December 17, 1993, and recorded on
December 20, 1993, as Instrument No. 12271738, in the Official Records of Santa
Clara County, California (the "Second Amendment to Building Lease"), pursuant to
----------------------------------
which Lessor financed certain renovations to the Building. The First Amended
Building Lease, as amended by the Second Amendment to Building Lease, is
referred to herein as the "Second Amended Building Lease."
-----------------------------
C. The Second Amended Building Lease was modified by a certain Third
Amendment to Building Lease, dated as of August 21, 1995, and recorded on
September 20, 1995, as Instrument No. 13020001, in the Official Records of Santa
Clara County, California (the "Third Amendment to Building Lease"). The Second
---------------------------------
Amended
Building Lease, as amended by the Third Amendment to Building Lease, is referred
to herein as the "Third Amended Building Lease."
----------------------------
D. The Third Amended Building Lease was modified by a certain Fourth
Amendment to Building Lease, dated as of November 10, 1995, and recorded on
December 7, 1995, as Instrument No. 13123502, in the Official Records of Santa
Clara County, California (the "Fourth Amendment to Building Lease"). The Third
----------------------------------
Amended Building Lease, as amended by the Fourth Amendment to Building Lease, is
referred to herein as the "Fourth Amended Building Lease."
-----------------------------
E. Advanced Micro Devices, Inc., a Delaware corporation (the "Guarantor"),
---------
executed and delivered to Lessor a Third Amended and Restated Guaranty, dated as
of August 21, 1995 and accepted by Lessor as of August 21, 1995 (the "Third
-----
Restated Guaranty"), pursuant to which the Guarantor guarantied to Lessor the
- -----------------
obligations of Lessee under the Fourth Amended Building Lease and under the
Fourth Amended Land Lease (defined below).
F. The Third Restated Guaranty was modified by a certain First Amendment
to Third Amended and Restated Guaranty, dated as of October 20, 1995, a certain
Second Amendment to Third Amended and Restated Guaranty, dated as of January 12,
1996, a certain Third Amendment to Third Amended and Restated Guaranty, dated as
of May 10, 1996, and a certain Fourth Amendment to Third Amended and Restated
Guaranty, dated as of July 20, 1996. The Third Restated Guaranty, as amended,
is referred to herein as the "Fourth Amended Guaranty."
-----------------------
G. Lessee has requested certain modifications to the Fourth Amended
Guaranty which will be incorporated into a certain Fifth Amendment to Third
Amended and Restated Guaranty to be dated concurrently herewith (the "Fifth
-----
Guaranty Amendment"). The Fifth Guaranty Amendment requires, as a condition
- ------------------
precedent to the effectiveness thereof, that the Lessee execute and deliver this
Fifth Amendment. The Fourth Amended Guaranty, as amended by the Fifth Guaranty
Amendment, is referred to herein as the "Fifth Amended Guaranty."
----------------------
H. Concurrently herewith, Lessor and Lessee also are amending that certain
Land Lease between Lessor and Lessee, dated as of September 22, 1992, and
recorded on September 22, 1992, as Instrument No. 11550953, in the Official
Records of Santa Clara County, California, as amended by (i) a certain First
Amendment to Land Lease, dated as of December 22, 1992, and recorded on January
5, 1993, as Instrument No. 11720033, in the Official Records of Santa Clara
County, California, (ii) a certain Second Amendment to Land Lease, dated as of
December 17, 1993, and recorded on December 20, 1993, as Instrument No.
12271737, in the Official Records of Santa Clara County, California, (iii) a
certain Third
-2-
Amendment to Land Lease, dated as of August 21, 1995, and recorded on September
20, 1995, as Instrument No. 13020000, in the Official Records of Santa Clara
County, California, and (iv) a certain Fourth Amendment to Land Lease, dated as
of November 10, 1995, and recorded on December 7, 1995, as Instrument No.
13123501, in the Official Records of Santa Clara County, California, (as so
amended, the "Fourth Amended Land Lease"), pursuant to which Lessor leases to
-------------------------
Lessee certain land described in Appendix 1 attached hereto.
----------
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Lessor and Lessee hereby agree as follows (terms used but not
expressly defined herein shall have the meaning provided in the Fourth Amended
Building Lease):
A. MODIFICATIONS TO BUILDING LEASE
Lessor and Lessee hereby amend the Fourth Amended Building Lease as
follows:
1. All references in the Fourth Amended Building Lease to "this Lease" or
"the Lease" will hereafter refer to the Fourth Amended Building Lease as amended
by this Fifth Amendment.
2. The definition of Land Lease is hereby deleted and replaced with the
----------
following:
Land Lease: that certain Land Lease between Lessor and Lessee, dated
----------
as of September 22, 1992, and recorded on September 22, 1992, as Instrument
No. 11550953, in the Official Records of Santa Clara County, California, as
amended by that certain First Amendment to Land Lease, dated as of December
22, 1992, and recorded on January 5, 1993, as Instrument No. 11720034, in
the Official Records of Santa Clara County, California, and as further
amended by a certain Second Amendment to Land Lease, dated as of December
17, 1993, and recorded on December 20, 1993, as Instrument No. 12271737, in
the Official Records of Santa Clara County, California, and as further
amended by a certain Third Amendment to Land Lease, dated as of August 21,
1995, and recorded on September 20, 1995, as Instrument No. 13020000, in
the Official Records of Santa Clara County, California, and as further
amended by a certain Fourth Amendment to Land Lease, dated as of November
10, 1995, and recorded on December 7, 1995, as Instrument No. 13123501, in
the Official Records of Santa Clara County, California and as further
amended by a certain Fifth Amendment to Land Lease, dated as of August 1,
1996.
3. Effective as of the date of this Fifth Amendment, the definition of
LIBO Rent is hereby deleted and replaced with the following:
- ---------
-3-
LIBO Rent: as of an Installment Date means the quotient of (1) the
---------
product of (i) the Balance Due as of the beginning of the Quarterly Period
in which such Installment Date falls (such Balance Due shall include the
amount of any Advance made on the first day of such Quarterly Period),
multiplied by (ii) the sum of 1.625% plus the rate obtained by dividing the
LIBO Rate by a percentage equal to 100% minus the LIBO Reserve Percentage,
multiplied by (iii) the number of actual days elapsed (including such
Installment Date) in the Quarterly Period that includes such Installment
Date, divided by (2) 360.
As used herein, "LIBO Reserve Percentage" means the maximum reserve
-----------------------
percentage applicable to Lessor for such Quarterly Period (or if more than
one such percentage is applicable during such period, the daily average of
such percentages for those days in such period during which each such
percentage is applicable) under applicable law, including, without
limitation, regulations issued from time to time by the Federal Reserve
Board, for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) with respect to liabilities or assets consisting of or
including (x) eurocurrency liabilities in the amount of the above
referenced portion of the Balance Due and having a maturity substantially
the same as such Quarterly Period and (y) any other category of liabilities
which includes deposits by reference to which the LIBO Rate is to be
determined. Lessor shall submit a certificate to Lessee which shall set
forth in reasonable detail the basis for, calculation of and the amount of
LIBO Rent, which certificate shall be conclusive and binding for all
purposes, absent manifest error.
4. To the extent that the amendment to the definition of "LIBO Rent"
becomes effective on any day other than the first day of any Quarterly Period
(the "LIBO Rent Amendment Effective Date"), then for such Quarterly Period Basic
----------------------------------
Rent shall accrue at the LIBO Rent in effect immediately prior to the LIBO Rent
Amendment Effective Date up until the day prior to such LIBO Rent Amendment
Effective Date, and Basic Rent shall accrue for the remainder of such Quarterly
Period at the LIBO Rent in effect on such LIBO Rent Amendment Effective Date
(using the percentage 1.625% set forth in the definition of LIBO Rent in Section
3 above instead of the percentage 1.00% set forth in the Fourth Amended Building
Lease, but continuing to use the same LIBO Rate as in effect prior to LIBO Rent
Amendment Effective Date).
B. AFFIRMATION OF STATUS OF BUILDING LEASE
Except as amended by this Fifth Amendment, the Fourth Amended Building
Lease is unchanged; and, as amended by this Fifth
-4-
Amendment, the Fourth Amended Building Lease is hereby ratified and affirmed,
and remains in full force and effect.
C. AMENDMENT FEE
In consideration of this Fifth Amendment and and the Fifth Amendment to
Land Lease, Lessee agrees to pay Lessor a one-time nonrefundable fee of $75,000
(the "Amendment Fee"). The Amendment Fee shall be paid by Lessee by wire
-------------
transfer to an account to be specified by Lessor.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
-5-
IN WITNESS WHEREOF, all parties hereto have caused this Fifth Amendment to
be duly executed as of the date first set forth above.
LESSOR: CIBC INC., a Delaware corporation
By /s/ Tom R. Wagner
---------------------------------
Name: Tom R. Wagner
Title: Director
LESSEE: AMD INTERNATIONAL SALES & SERVICE, LTD., a
Delaware corporation
By /s/ Marvin D. Burkett
---------------------------------
Name: Marvin D. Burkett
Title: President, Chief Financial Officer
and Treasurer
Guarantor hereby consents to the foregoing amendment, and acknowledges and
agrees that all references in the Fifth Amended Guaranty to the "Amended
Building Lease" or to the "Amended Land Lease" will hereafter refer to such
Amended Building Lease and Amended Land Lease, as the case may be, as
respectively amended by this Fifth Amendment to Building Lease and by the Fifth
Amendment to Land Lease between Lessor and Lessee. Except as modified by this
paragraph, the Fifth Amended Guaranty is unmodified; and, except as modified by
this paragraph, the Fifth Amended Guaranty remains in full force and effect and
is hereby reaffirmed by the Guarantor.
Guarantor:
ADVANCED MICRO DEVICES, INC.
By: /s/ Marvin D. Burkett
---------------------------
Name: Marvin D. Burkett
Title: Senior Vice President,
Chief Financial and
Administrative Officer
and Treasurer
Date: August 8, 1996
-6-
Reference is made to the Loan Agreement, dated as of December 17, 1993 (the
"Loan Agreement"), between CIBC INC., a Delaware corporation, and THE LONG-TERM
--------------
CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY ("Lender"). In accordance with
------
Section 8(b) of the Loan Agreement, Lender hereby consents to the foregoing
Fifth Amendment to Building Lease.
THE LONG-TERM CREDIT BANK OF
JAPAN, LOS ANGELES AGENCY
By: /s/ Genichi Imai
---------------------------
Name: Genichi Imai
-------------------------
Title: Joint General Manager
------------------------
Date: August 1, 1996
-7-
ACKNOWLEDGEMENT FOR CIBC INC.
STATE OF California
-------------
COUNTY OF San Francisco
-------------
On August 6, 1996, before me, Sally K. Danekas, personally appeared Tom R.
Wagner, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that _he executed the same in h__ authorized capacity, and
that by h__ signature on the instrument the person, or the entity upon behalf of
which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature: /s/ Sally K. Danekas
-------------------------------
[SEAL]
-8-
ACKNOWLEDGEMENT FOR AMD INTERNATIONAL SALES & SERVICE, LTD.
STATE OF California
-------------
COUNTY OF Santa Clara
-------------
On August 8, 1996, before me, Winona C. Orange, Notary, personally
appeared Marvin Burkett, personally known to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature: /s/ Winona C. Orange
-----------------------------
[SEAL]
-9-
ACKNOWLEDGEMENT FOR ADVANCED MICRO DEVICES, INC.
STATE OF California
-------------
COUNTY OF Santa Clara
-------------
On August 8, 1996, before me, Winona C. Orange, Notary, personally appeared
Marvin Burkett, personally known to me to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature: /s/ Winona C. Orange
--------------------------------
[SEAL]
-10-
ACKNOWLEDGEMENT FOR
THE LONG-TERM CREDIT BANK OF JAPAN, LOS ANGELES AGENCY
STATE OF California
-------------
COUNTY OF Los Angeles
-------------
On August 1, 1996, before me, Albina Lovasz, Notary Public, personally
appeared Genichi Imai, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature: /s/ Albina Lovasz
-------------------------------
[SEAL]
-11-
APPENDIX 1
Legal Description of Land
The land referred to herein is situated in the State of California, County of
Santa Clara, City of Sunnyvale and is described as follows:
Parcel A as shown upon that certain Parcel Map filed for Record February 26,
1975 in the Office of the Recorder, County of Santa Clara, in Book 351 of Maps
at Pages 54 and 55.
APN: 205-22-020, 021
ARB: 206-60-015, 018, 035, 042, 014, 013, 012, 053, 052, 057
-12-