SIXTH AMENDMENT TO BUILDING LEASE
Published on July 9, 1998
EXHIBIT 10.26(g)
Recording Requested By
and When Recorded, Return to:
Mayer, Brown & Platt
350 South Grand Avenue
25th Floor
Los Angeles, California 90071-1563
Attention: Kevin R. Garlitz
(213) 229-9500
================================================================================
SIXTH AMENDMENT TO BUILDING LEASE
THIS SIXTH AMENDMENT TO BUILDING LEASE (this "Sixth Amendment") is entered
---------------
into as of June 30, 1998, 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. The Fourth Amended Building Lease was modified by a certain Fifth
Amendment to Building Lease, dated as of August 1, 1996, and recorded on August
14, 1996, as Instrument No. 13408206, in the Official Records of Santa Clara
County, California (the "Fifth Amendment to Building Lease"). The Fourth
---------------------------------
Amended Building Lease, as amended by the Fifth Amendment to Building Lease, is
referred to herein as the "Fifth Amended Building Lease."
----------------------------
F. 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 Fifth Amended Building Lease and under the Fifth
Amended Land Lease (defined below).
G. 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, a certain Fourth Amendment to Third Amended and Restated
Guaranty, dated as of July 20, 1996, a certain Fifth Amendment to Third Amended
and Restated Guaranty, dated as of July 20, 1996, a certain Sixth Amendment to
Third Amended and Restated Guaranty, dated as of February 6, 1998 and a certain
Seventh Amendment to Third Amended and Restated Guaranty, dated as of February
27, 1998. The Third Restated Guaranty, as amended, is referred to herein as the
"Seventh Amended Guaranty."
------------------------
H. Lessee has requested certain modifications to the Seventh Amended
Guaranty which will be incorporated into a certain Eighth Amendment to Third
Amended and Restated Guaranty to be dated concurrently herewith (the "Eighth
------
Guaranty Amendment"). The Eighth Guaranty Amendment requires, as a condition
- ------------------
precedent to the effectiveness thereof, that the Lessee execute and deliver this
Sixth Amendment. The Seventh Amended Guaranty, as amended by the Eighth
Guaranty Amendment, is referred to herein as the "Eighth Amended Guaranty."
-----------------------
-2-
I. 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 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, (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 and (v)
a certain Fifth Amendment to Land Lease, dated as of August 1, 1996, and
recorded on August 13, 1996, as Instrument No. 13405693, in the Official Records
of Santa Clara County, California, (as so amended, the "Fifth 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 Fifth Amended
Building Lease):
A. MODIFICATIONS TO BUILDING LEASE
Lessor and Lessee hereby amend the Fifth Amended Building Lease as follows:
1. All references in the Fifth Amended Building Lease to "this Lease" or
"the Lease" will hereafter refer to the Fifth Amended Building Lease as amended
by this Sixth 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,
-3-
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, and
recorded on August 13, 1996, as Instrument No. 13405693, in the Official
Records of Santa Clara County, California, and as further amended by a
certain Sixth Amendment to Land Lease, dated as of June 30, 1998
3. Effective as of June 30, 1998, the definition of LIBO Rent is hereby
---------
deleted and replaced with the following:
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 3.40% 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
-4-
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 3.40% set forth in the definition of LIBO Rent in Section 3 above
instead of the percentage 1.625% set forth in the Fifth 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 Sixth Amendment, the Fifth Amended Building Lease
is unchanged; and, as amended by this Sixth Amendment, the Fifth Amended
Building Lease is hereby ratified and affirmed, and remains in full force and
effect.
C. AMENDMENT FEE
In consideration of this Sixth Amendment, the Sixth Amendment to Land Lease
and the Eighth Guaranty Amendment, Lessee shall have paid a one-time
nonrefundable fee of $50,000.00 to Lessor and $50,000.00 to Lender (defined
below) pursuant to the Eighth Guaranty Amendment.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
-5-
IN WITNESS WHEREOF, all parties hereto have caused this Sixth Amendment to
be duly executed as of the date first set forth above.
LESSOR: CIBC INC., A DELAWARE CORPORATION
By_________________________________
Name:
Title:
LESSEE: AMD INTERNATIONAL SALES & SERVICE, LTD., A
DELAWARE CORPORATION
/s/ Richard Previte
By_________________________________
Name: Richard Previte
Title: President, Chief Financial Officer and
Treasurer
Guarantor hereby consents to the foregoing amendment, and acknowledges and
agrees that all references in the Eighth 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 Sixth Amendment to Building Lease and by the Sixth
Amendment to Land Lease between Lessor and Lessee. Except as modified by this
paragraph, the Eighth Amended Guaranty is unmodified; and, except as modified by
this paragraph, the Eighth Amended Guaranty remains in full force and effect and
is hereby reaffirmed by the Guarantor.
GUARANTOR:
ADVANCED MICRO DEVICES, INC.
/s/ Richard Previte
By:___________________________
Name: Richard Previte
Title: President, Chief operating Officer, Chief financial and Administrative
Officer and Treasurer
Date: July 6, 1998
-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
Sixth Amendment to Building Lease.
THE LONG-TERM CREDIT BANK OF
JAPAN, LOS ANGELES AGENCY
By:___________________________
Name:_________________________
Title:________________________
Date: July __, 1998
-7-
ACKNOWLEDGMENT FOR CIBC INC.
STATE OF ______________
COUNTY OF _______________
On ____________, 1998, before me, ________________________, personally
appeared _______________________, 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:_______________________________
(Seal)
-8-
ACKNOWLEDGMENT FOR AMD INTERNATIONAL SALES & SERVICE, LTD.
California
STATE OF ________________
Santa Clara
COUNTY OF _______________
On July 6, 1998, before me, Winona C. Orange, Notary Public, personally
appeared RICHARD PREVITE, 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.
/s/ Winona C. Orange
Signature:_______________________________
(Seal of WINONA C. ORANGE Appears here)
WINONA C. ORANGE
COMMISSION # 1127987
NOTARY PUBLIC -- CALIFORNIA
SANTA CLARA COUNTY
MY COMM. EXPIRES APR 1, 2001
-9-
ACKNOWLEDGMENT FOR ADVANCED MICRO DEVICES, INC.
California
STATE OF ________________
Santa Clara
COUNTY OF _______________
On July 6, 1998, before me, Winona C. Orange, Notary Public, personally
appeared RICHARD PREVITE, 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.
/s/ Winona C. Orange
Signature:_______________________________
(Seal of WINONA C. ORANGE Appears here)
WINONA C. ORANGE
COMMISSION # 1127987
NOTARY PUBLIC -- CALIFORNIA
SANTA CLARA COUNTY
MY COMM. EXPIRES APR 1, 2001
-10-
ACKNOWLEDGMENT FOR
THE LONG-TERM CREDIT BANK OF JAPAN, LOS ANGELES AGENCY
STATE OF ________________
COUNTY OF _______________
On ____________, 1998, before me, ________________________, personally
appeared _______________________, 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:_______________________________
(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-