Exhibit 10.29 (c)
Recording Requested By
and When Recorded, Return to:
Xxxxx, Brown & Xxxxx
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-1563
Attention: Xxxxxx X. Xxxxxx
(000) 000-0000
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THIRD AMENDMENT TO LAND LEASE
THIS THIRD AMENDMENT TO LAND LEASE (this "Third Amendment") is entered into
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as of August 21, 1995, by and between CIBC INC., a Delaware corporation
("Lessor"), and AMD INTERNATIONAL SALES & SERVICE, LTD., a Delaware corporation
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("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
certain Land Lease, dated as of September 22, 1992, and recorded on September
22, 1992 as Instrument No. 11550953 in the Official Records of the Recorder of
Santa Xxxxx 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 Official Records of the Recorder of Santa Xxxxx
County, California (such Land Lease, as so amended, is referred to herein as the
"First Amended Original Land Lease"), pursuant to which Lessor leases the Land
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(as defined therein) to Lessee and Lessee leases the Land from Lessor.
B. The First Amended Original Land Lease was modified by a certain Second
Amendment to Land Lease dated as of December 17, 1993, and recorded on December
20, 1993 in the Official Records of Santa Xxxxx County, California, as Document
No. 12271737 (the "Second Amendment to Land Lease"). The First Amended Original
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Land Lease, as amended by the Second Amendment to Land Lease, is referred to
herein as the "Second Amended Original Land Lease."
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C. Under the First Amended Original Land Lease, Xxxxxx's lease of the Land
to Lessee was scheduled to expire on September 21, 1995, but was extended to
December 22, 1995 under the Second Amendment to Land Lease.
X. Xxxxxx and Lessee desire to amend the Second Amended Original Land
Lease to (i) extend the scheduled expiration date to December 22, 1998, and (ii)
incorporate certain other changes and modifications that have been agreed to by
Xxxxxx and Xxxxxx.
E. Concurrently herewith, Lessor and Xxxxxx also are amending that certain
Building Lease between Lessor and Xxxxxx dated as of September 22, 1992, and
recorded on September 22, 1992 as Instrument No. 11550954 in the Official
Records of the Recorder of Santa Xxxxx 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 in the Official Records of the Recorder of Santa
Xxxxx County, California as Document No. 11720034, and (ii) a certain Second
Amendment to Building Lease dated as of December 17, 1993, and recorded on
December 20, 1993 in the Official Records of Santa Xxxxx County, California, as
Document No. 12271738.
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 Second Amended
Original Land Lease):
A. MODIFICATIONS TO LAND LEASE
Lessor and Xxxxxx hereby amend the Second Amended Original Land Lease as
follows:
1. Fixed Term. In Section 1.2, the Expiration Date is hereby changed to
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December 22, 1998, and the Fixed Term will expire on such Expiration Date.
2. Definitions.
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(a) All references in the Second Amended Original Land Lease to "this
Lease" or "the Lease" will hereafter refer to the Second Amended Original Land
Lease as amended by this Third Amendment.
(b) The following definitions are hereby added to Section 2 in proper
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alphabetical sequence:
Second Consent Agreement: means the Construction Consent Agreement
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dated as of April 27, 1995 between Lessor and Lessee and consented to by
Guarantor and Lender.
UCC: means the Uniform Commercial Code as in effect in any
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jurisdiction.
(c) The definition of Building Lease is hereby deleted and replaced with
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the following:
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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 in
the Official Records of the Recorder of Santa Xxxxx County, California as
Document No. 11550954, as amended by that certain First Amendment to
Building Lease dated as of December 22, 1992, and recorded January 5, 1993
in the Official Records of the Recorder of Santa Xxxxx County, California
as Document No. 11720034, and as further amended by a certain Second
Amendment to Building Lease, dated as of December 17, 1993, and recorded on
December 20, 1993 in the Official Records of the Recorder of Santa Xxxxx
County, California as Document No. 12271738, and as further amended by a
certain Third Amendment to Building Lease, dated as of August 21, 1995 and
recorded in the Official Records of the Recorder of Santa Xxxxx County,
California.
(d) The definition of Guaranty is hereby deleted and replaced with the
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following:
Guaranty: that certain Third Amended and Restated Guaranty, dated as
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of August 21, 1995, made by Guarantor in favor of Lessor.
(e) The definition of Lien is hereby deleted and replaced with the
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following:
Lien: any mortgage, deed of trust, pledge, hypothecation, assignment,
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charge or deposit arrangement, encumbrance, lien (statutory or other) or
preference, priority or other security interest or preferential arrangement
of any kind or nature whatsoever (including those created by, arising under
or evidenced by any conditional sale or other title retention agreement,
the interest of a lessor under an arrangement constituting a Capitalized
Lease Liability, any financing lease having substantially the same economic
effect as any of the foregoing, or the filing of any financing statement
naming the owner of the asset to which such lien relates as debtor, under
the UCC or any comparable law), and any contingent or other agreement to
provide any of the foregoing.
(f) The definition of Operative Agreements is hereby deleted and replaced
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with the following:
Operative Agreements: (i) this Lease, (ii) the Building Lease, (iii)
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the Guaranty, (iv) that certain Purchase and Sale Agreement, dated as of
April 15, 1992, between American Telephone and Telegraph Company, as
seller, and Guarantor, as buyer, as amended by that certain First Amendment
to Purchase and Sale Agreement dated as of August 10, 1992, and as further
amended by that certain Second Amendment to Purchase and Sale Agreement
dated as of September 17, 1992, (v) that certain
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Restated Hazardous Materials Undertaking and Unsecured Indemnity, dated as
of December 17, 1993, by Xxxxxx and Guarantor in favor of Lessor, as
amended by that certain First Amendment to Restated Hazardous Materials
Undertaking and Unsecured Indemnity, dated as of August 21, 1995, (vi) that
certain Assignment of Purchase and Sale Agreement dated as of September 21,
1992, made by Guarantor in favor of Lessor, (vii) that certain agreement,
dated as of September 21, 1992, between American Telephone and Telegraph
Company and Lessee, (viii) that certain Consent to Assignment of Purchase
and Sale Agreement, dated as of September 21, 1992, made by American
Telephone and Telegraph Company in favor of Lessor and Guarantor, (ix) the
Consent Agreement, (x) the Second Consent Agreement, (xi) the Letter
Agreement (as defined in the Building Lease), and (xii) any and all other
documents executed by Xxxxxx or Guarantor or any Affiliate of either
thereof in connection with any of the foregoing.
3. Events of Default. In Section 25.1(h), the first parenthetical is
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replaced with the following: "(other than those referred to in subdivisions (a),
(b), (c), (d), (e), (f), or (g) above or (j), (k), (l), (m), (n), (o), (p) or
(q) below)". In Section 25.1, clause (o) and all succeeding clauses in such
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Section 25.1 are hereby deleted and replaced with the following:
(o) any Event of Default (as defined in the Building Lease) occurs
under the Building Lease;
(p) any Event of Default (as defined in the Consent Agreement)
occurs under the Consent Agreement; or
(q) any Event of Default (as defined in the Second Consent
Agreement) occurs under the Second Consent Agreement.
4. Trustee; Power of Sale; Receiver. The phrase "However, in", at the
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beginning of the second sentence of Section 26 of the Second Amended Original
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Land Lease is hereby replaced with "(a) In". The first sentence of Section 26
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of the Second Amended Original Land Lease is hereby deleted.
The following is hereby inserted added at the end of Section 26 of the Second
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Amended Original Land Lease:
"(b) Specifically, without limiting the generality of subsection (a)
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of this Section 26, if a court of competent jurisdiction rules that this
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Lease constitutes a mortgage, deed of trust or other secured financing,
then Lessor and Lessee further intend and agree that, for the purpose of
securing Lessee's obligations in connection with the above-described
financing from Lessor to Lessee, including, without
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limitation, the Balance Due, and all other amounts payable in connection
therewith, (i) this Lease shall also be deemed to be a security agreement
and financing statement within the meaning of Article 9 of the UCC and a
real property deed of trust; (ii) the conveyance provided for hereby will
be deemed to be a grant by Lessee to the Trustee, for the benefit of
Lessor, of a deed of trust lien and a grant by Lessee to Lessor of a
security interest in all of Lessee's right, title and interest in and to
the Land, and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, investments, securities or other property, to
secure such obligations; (iii) the possession by Lessor or any of its
agents of notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper will be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-305 of the UCC; and (iv) notifications to
Persons holding such property, and acknowledgements, receipts or
confirmations from financial intermediaries, bankers or agents (as
applicable) by Lessee, will be deemed to have been given for the purpose of
perfecting such security interest under applicable Legal Requirements.
Lessor and Lessee will, to the extent consistent with this Lease, take such
actions and execute, deliver, file and record such other documents,
financing statements, mortgages and deeds of trust as may be necessary to
ensure that, if this Lease were deemed to create a deed of trust lien and a
security interest in Xxxxxx's interest in the Land in accordance with this
Section, such deed of trust lien and security interest would be deemed to
be a perfected deed of trust lien and security interest of first priority
under applicable Legal Requirements and will be maintained as such
throughout the Fixed Term."
5. Notices. Xxxxxx's address for notices as set forth in Section 38 is
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hereby changed to:
AMD International Sales & Service, Ltd.
0000 Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
with a copy to:
AMD International Sales & Service, Ltd.
0000 Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
6. Purchase and Remarketing of Land. With respect to Section 41, Lessor
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and Lessee hereby agree that notwithstanding the provisions of Section 6 of the
Second Consent Agreement to the
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contrary, the Remarketing Option is reinstated and is in full force and effect,
as modified by this Third Amendment.
7. Option to Remarket. The text of Subparagraph I of Section 41.6 is
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hereby deleted and replaced with the following: "All Alterations described in
the Second Consent Agreement are completed prior to the Expiration Date in
accordance with the Second Consent Agreement and Section 8 hereof; all other
Alterations commenced at any time during or before the Fixed Term are completed
prior to the Expiration Date in accordance with Section 8 hereof; and any
Restoration (in the event of a Taking or any casualty or other damage or
destruction) is completed before the Expiration Date."
B. AFFIRMATION OF STATUS OF ORIGINAL LAND LEASE
Except as amended by this Third Amendment, the Second Amended Original Land
Lease is unchanged; and, as amended by this Third Amendment, the Second Amended
Original Land Lease is hereby ratified and affirmed, and remains in full force
and effect.
IN WITNESS WHEREOF, all parties hereto have caused this Third Amendment to
be duly executed as of the date first set forth above.
LESSOR: CIBC INC., a Delaware corporation
By /s/ Xxxxx X. Xxxxxx
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Name: XXXXX X. XXXXXX
Title: VICE PRESIDENT
By
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Name:
Title:
LESSEE: AMD INTERNATIONAL SALES & SERVICE,
LTD., a Delaware corporation
By /s/ Xxxxxx X. Xxxxxxx
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Name: XXXXXX X. XXXXXXX
Title: PRESIDENT
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ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss
COUNTY OF NEW YORK )
On Sept. 5, 1995, before me, Xxxxxx X. X'Xxxxx, personally appeared Xxxxx
X. Xxxxxx and ______________________, personally known to me to be the persons
whose names are subscribed to the within instrument and acknowledged to me that
they executed the same in their authorized capacity, and that by their
respective signatures on the instrument the persons, or the entity upon behalf
of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature: Xxxxxx X. X'Xxxxx
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(Seal) [STAMP APPEARS HERE]
STATE OF CALIFORNIA )
) ss
COUNTY OF SANTA XXXXX )
On August 24, 1995, before me, Xxxxx X. Xxxxxx, personally appeared Xxxxxx
X. Xxxxxxx, 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: Xxxxx X. Xxxxxx
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(Seal) [STAMP APPEARS HERE]
APPENDIX 1
Legal Description of Land
The land referred to herein is situated in the State of California, County of
Santa Xxxxx, 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 Xxxxx, in Book 351 of Maps
at Pages 54 and 55.
APN: 000-00-000, 021
ARB: 000-00-000, 018, 035, 042, 014, 013, 012, 053, 052, 057
