FIFTH AMENDMENT TO LAND LEASE
Published on August 21, 1996
EXHIBIT 99.5
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
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FIFTH AMENDMENT TO LAND LEASE
THIS FIFTH AMENDMENT TO LAND LEASE (this "Fifth Amendment") is entered into
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as of August 1, 1996, between CIBC INC., a Delaware corporation ("Lessor"), and
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AMD INTERNATIONAL SALES & SERVICE, LTD., a Delaware corporation ("Lessee").
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RECITALS
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A. For purposes of the financing by Lessor of the acquisition of the Land
described in Appendix 1 attached hereto, Lessor and Lessee entered into a
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certain Land Lease, 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. 11720033, in the Official Records of Santa Clara County, California (such
Land Lease, as so amended, is referred to herein as the "First Amended Land
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Lease"), pursuant to which Lessor leases the Land (as defined therein) to Lessee
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and Lessee leases the Land from Lessor.
B. The First Amended Land Lease was modified 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 (the "Second Amendment to Land Lease"). The First Amended Land
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Lease, as amended by the Second Amendment to Land Lease, is referred to herein
as the "Second Amended Land Lease."
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C. The Second Amended Land Lease was modified 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 (the "Third Amendment to Land Lease"). The Second Amended Land
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Lease, as amended by the Third Amendment to Land Lease, is referred to herein as
the "Third Amended Land Lease."
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D. The Third Amended Land Lease was modified 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 (the "Fourth Amendment to Land Lease"). The Third Amended Land
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Lease, as amended by the Fourth Amendment to Land Lease, is referred to herein
as the "Fourth Amended Land Lease."
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E. Advanced Micro Devices, Inc., a Delaware corporation (the "Guarantor"),
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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
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Restated Guaranty"), pursuant to which the Guarantor guarantied to Lessor the
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obligations of Lessee under the Fourth Amended Land Lease and under the Fourth
Amended Building 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."
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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
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Guaranty Amendment"). The Fifth Guaranty Amendment requires, as a condition
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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."
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H. Concurrently herewith, Lessor and Lessee also are amending that certain
Building Lease between Lessor and Lessee, 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 (i) a certain First
Amendment to Building 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, (ii) 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, (iii) 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 and (iv) a certain Fourth Amendment to
Building Lease, dated as of
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November 10, 1995, and recorded on December 7, 1995, as Instrument No. 13123502,
in the Official Records of Santa Clara County, California (as so amended, the
"Fourth Amended Building Lease").
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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
Land Lease):
A. MODIFICATIONS TO LAND LEASE
Lessor and Lessee hereby amend the Fourth Amended Land Lease as follows:
1. All references in the Fourth Amended Land Lease to "this Lease" or "the
Lease" will hereafter refer to the Fourth Amended Land Lease as amended by this
Fifth Amendment.
2. The definition of Building Lease is hereby deleted and replaced with
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the following:
Building Lease: that certain Building Lease entered into between
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Lessor and Lessee on September 22, 1992, and recorded 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 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 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, and as further amended 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, and as further amended 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, and as further amended by a certain Fifth Amendment to
Building 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:
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LIBO Rent: as of an Installment Date means the Balance Due as of such
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Installment Date multiplied by an interest rate per annum equal at all
times to the sum of (a) 1.625% plus (b) the rate obtained by dividing the
LIBO Rate (or the Corporate
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Base Rate if required pursuant to the terms set forth under the definition
of "LIBO Rate") by a percentage equal to 100% minus the LIBO Reserve
Percentage, dividing the sum thereof by 360 and multiplying the result
thereof by the number of actual days elapsed (including such Installment
Date) in the Quarterly Period that includes such Installment Date.
As used herein, "LIBO Reserve Percentage" means the maximum reserve
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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
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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 Land Lease, but continuing to use the same
LIBO Rate as in effect prior to LIBO Rent Amendment Effective Date).
B. AFFIRMATION OF STATUS OF LAND LEASE
Except as amended by this Fifth Amendment, the Fourth Amended Land Lease is
unchanged; and, as amended by this Fifth Amendment, the Fourth Amended Land
Lease is hereby ratified and affirmed, and remains in full force and effect.
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C. AMENDMENT FEE
In consideration of this Fifth Amendment and the Fifth Amendment to
Building 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
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wire transfer to an account to be specified by Lessor.
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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
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Name: Tom R. Wagner
Title: Director
LESSEE: AMD INTERNATIONAL SALES & SERVICE, LTD., a
Delaware corporation
By /s/ Marvin Burkett
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Name: Marvin 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 Land
Lease" or to the "Amended Building Lease" will hereafter refer to such Amended
Land Lease and Amended Building Lease, as the case may be, as respectively
amended by this Fifth Amendment to Land Lease and by the Fifth Amendment to
Building 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 Burkett
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Name: Marvin Burkett
Title: Senior Vice President, Chief Financial and Administrative Officer and
Treasurer
Date: August 8, 1996
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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
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CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY ("Lender"). In accordance with
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Section 8(b) of the Loan Agreement, Lender hereby consents to the foregoing
Fifth Amendment to Land Lease.
THE LONG-TERM CREDIT BANK OF
JAPAN, LOS ANGELES AGENCY
By: /s/ Genichi Imai
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Name: Genichi Imai
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Title: Joint General Manager
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Date: August 1, 1996
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ACKNOWLEDGEMENT FOR CIBC INC.
STATE OF California
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COUNTY OF San Francisco
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On August 6, 1996, before me, Sally K. Danekas, personally appeared Tom K.
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 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/ Sally K. Danekas
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(Seal)
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ACKNOWLEDGEMENT FOR AMD INTERNATIONAL SALES & SERVICE, LTD.
STATE OF California
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COUNTY OF Santa Clara
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On August 8, 1996, before me, Winona C. Orange, 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
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(Seal)
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ACKNOWLEDGEMENT FOR ADVANCED MICRO DEVICES, INC.
STATE OF California
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COUNTY OF Santa Clara
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On August 8, 1996, before me, Winona C. Orange, 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
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(Seal)
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ACKNOWLEDGEMENT FOR
THE LONG-TERM CREDIT BANK OF JAPAN, LOS ANGELES AGENCY
STATE OF California
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COUNTY OF Los Angeles
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On August 1, 1996, before me, Albina Lovasz, Notary Public, personally
appeared Genichi Ima: 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 person acted, executed the instrument.
WITNESS my hand and official seal.
Signature: /s/ Albina M. Lovasz
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(Seal)
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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
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