EXHIBIT 2.9
Execution Copy
LEASE MODIFICATION AGREEMENT
between
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
as Tenant,
NPDC - EY BREA TRUST
as Landlord
and
NPDC - RI BREA TRUST
as Remainder Landlord
Dated June 25, 1998
PROPERTY
200 and ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇, ▇▇
THIS LEASE MODIFICATION AGREEMENT is made as of this 25th
day of June 1998 by and among NPDC-EY BREA TRUST, a Delaware
business trust, having an office at c/o Cardinal Capital
Partners, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ("Landlord"), NPDC-RI BREA TRUST, a Delaware business
trust, having an office at c/o Cardinal Capital Partners, Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇--▇▇▇▇
("Remainder Landlord"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC., a Delaware
corporation, having its principal office at ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇--▇▇▇▇
("Tenant").
WHEREAS, concurrently with the entering into of this
Agreement, Remainder Landlord, Landlord and Tenant have entered
into a lease, dated as of the date hereof, with respect to the
real property described on the cover page of this Lease
Modification Agreement (as such Lease has been amended and
modified pursuant to this Lease Modification Agreement, the
"Lease"); and
WHEREAS, the rentals due under the Lease, as originally
executed, are payable in Dollars; and
WHEREAS, Remainder Landlord, Landlord and Tenant have agreed
to amend the Lease to provide that payment of rents thereunder
shall be in Yen, so long as there is in place a currency swap or
swaps which provide for the exchange of the Yen rents which
Landlord is entitled to receive for an amount in Dollars equal to
the Dollar amounts of rent originally designated in the Lease,
and provided further that Landlord has the assurance that at such
time as such currency swap or swaps are no longer in place, the
rent due under the Lease will again be payable in Dollars, as
contemplated by the Lease as originally executed without regard
to its amendment in this Lease Modification Agreement;
IN CONSIDERATION of the mutual agreements herein contained
and other good and valuable consideration, Remainder Landlord,
Landlord and Tenant hereby covenant and agree as follows:
1. Certain Definitions
(a) "Basic Dollar Rent" means the Dollar amount of the
monthly installment of Basic Rent to be paid under Paragraph 4(a)
of the Lease as in effect without regard to this Lease
Modification Agreement.
(b) "Basic Yen Rent" means the amount of Yen specified in a
Qualifying Exchange Agreement.
(c) "Conversion Notice" means a notice from Tenant to
Landlord, as described in Paragraph 3 (a) below, requesting
conversion of the Basic Rent payments due under the Lease to
Dollars, instead of the Yen which are due pursuant to this Lease
Modification Agreement.
(d) "Dollar" or "Dollars" means the currency of the United
States of America.
(e) "Lease" means that certain Lease among Remainder
Landlord, Landlord and Tenant, as defined in the first Recital of
this Lease Modification Agreement.
(f) "Qualifying Exchange Agreement" means a currency swap
agreement (i) pursuant to which a Qualifying Financial
Institution undertakes to pay Landlord on or before the first
Business Day (as defined in the Lease) of each month an amount in
Dollars equal to the Basic Dollar Rent and Landlord agrees to pay
such Qualifying Financial Institution on the same date a sum
certain in Yen, as set forth in such Qualifying Exchange
Agreement; and (ii) which shall have the other terms and
conditions set forth in Paragraph 2(b) hereof. "Qualifying
Exchange Agreement" shall also mean two or more currency swap
agreements which in the aggregate satisfy the requirements of a
Qualifying Exchange Agreement hereunder, and shall mean such
agreement, as modified, amended and supplemented from time to
time.
(g) "Qualifying Financial Institution" means one or more
banks or other financial institutions, each of which, at the time
of the execution or transfer of the Qualifying Exchange
Agreement, shall have assets of at least 10 billion Dollars and a
long term senior unsecured debt rating, from Standard & Poor's
and any one of ▇▇▇▇▇'▇, Duff & ▇▇▇▇▇▇ or Fitch Investors
Services, of at least A+ (single A plus) or equivalent
equivalent, provided that if any such financial institution is
not headquartered in the United States and any applicable rating
agency requires such a legal opinion, such financial institution
shall provide a standard legal opinion with respect to
enforceability of any order or judgment of any court or other
governmental or administrative agency obtained in the United
States against such financial institution in the jurisdiction
where such financial institution is headquartered.
(h) "Voluntary Termination" means a voluntary early
termination of a Qualifying Exchange Agreement by Landlord
pursuant to Tenant's giving of a Conversion Notice under Section
3 hereof
(i) "Voluntary Termination Payment" means the amount, if
any, which Landlord will be obligated to pay pursuant to the
Qualifying Exchange Agreement in the event Landlord effects a
Voluntary Termination of such Qualifying Exchange Agreement.
(j) "Voluntary Termination Receipt" means the amount, if
any, which Tenant will be entitled to receive pursuant to the
Qualifying Exchange Agreement in the event Landlord effects a
Voluntary Termination of such Qualifying Exchange Agreement,
including the amount, if any, by which the payment made by Tenant
under Paragraph 3(a) hereof exceeds the Voluntary Termination
Payment then due.
(k) "Yen" means the currency of Japan.
Except as otherwise stated above, the capitalized terms
contained in this Lease Modification Agreement shall have the
same meaning as in the Lease.
2. Modification of Lease
(a) The Lease is deemed modified so that the currency of
the Lease shall be in Yen and shall remain in Yen, in that in
lieu of Basic Dollar Rent, Tenant shall be obligated to pay Basic
Yen Rent to Landlord and Landlord shall be obligated to accept
Basic Yen Rent from Tenant, in each case so long as each of the
conditions set forth in this Paragraph 2(a) are in full force and
effect. The conditions to such Lease modification and payment in
Yen are as follows: (i) as of the date on which Basic Dollar
Rent is due, a Qualifying Exchange Agreement shall be in full
force and effect (including a Qualifying Exchange Agreement which
replaces or extends a Qualifying Exchange Agreement which is
scheduled to terminate or has terminated); (ii) no notice of
termination shall have been given pursuant to and in accordance
with such Qualifying Exchange Agreement by any party thereto; and
(iii) the conditions precedent to the payment by the Qualifying
Financial Institution of its Dollar payments thereunder have been
satisfied or waived.
(b) Landlord shall enter into a Qualifying Exchange
Agreement (including any replacement or extended Qualifying
Exchange Agreement), provided that: (i) other than in the event
of Voluntary Termination as described in Section 3 hereof,
Landlord shall have no obligation to the Qualifying Financial
Institution for the payment of termination or breakage costs or
other related costs, if applicable, by reason of nonpayment of
Yen under such Qualifying Exchange Agreement so long as Landlord
has arranged for, and given an irrevocable letter of direction
to, Tenant to pay the Yen constituting the Basic Yen Rent to the
Qualifying Financial Institution and the nonpayment of such Yen
is not otherwise attributable to the action or inaction of
Landlord; (ii) any positive payments from the Qualifying
Financial Institution on account of termination of the Qualifying
Exchange Agreement will be paid to Tenant, (iii) Landlord will
not be obligated to pay the costs associated with arranging such
Qualifying Exchange Agreement on Landlord's behalf, but all such
costs will be paid by Tenant; (iv) such Qualifying Exchange
Agreement shall permit a Voluntary Termination upon notice from
Landlord and payment or prepayment by Landlord of any costs of
termination, as set forth in Section 3 below; and (v) under the
Qualifying Exchange Agreement, Landlord shall be required only to
make such representations and assume such obligations (other than
payment of termination or breakage costs, which shall be governed
by subsections (i) and (iv) above) which are customarily made or
assumed by a counterparty to an ISDA multicurrency cross-border
currency swap agreement. Any replacement or extended Qualifying
Exchange Agreement shall be on substantially the same terms and
conditions as to Landlord as those of the initial Qualifying
Exchange Agreement.
(c) Immediately as of the date that any of the conditions
to payment of Basic Yen Rent set forth in Paragraph 2(a) are no
longer satisfied, the modification of the Lease set forth in this
Paragraph 2(a) shall be automatically rescinded, Tenant's
obligation for payment of Basic Rent under the Lease shall
convert to an obligation to pay Basic Dollar Rent and not Basic
Yen Rent, and Paragraphs 2(a) and 2(b) of this Lease Modification
Agreement shall be of no further force and effect.
3. Voluntary Termination
(a) Tenant shall have the right, subject to the conditions
set forth in this Paragraph 3(a), to cause Basic Rent payments
under the Lease to become payable as Basic Dollar Rent instead of
Basic Yen Rent. To exercise this right, Tenant shall send a
written notice (the "Conversion Notice") to Landlord, specifying
the rent payment date as of which such conversion is to take
effect. If such conversion would result in a Voluntary
Termination Payment, such conversion shall not become effective
unless Tenant shall first have paid pursuant to Landlord's
direction letter an amount which is equal to the sum of (i) the
Voluntary Termination Payment and (ii) the other amounts, if any,
required to be paid to the Qualifying Financial Institution under
the Qualifying Exchange Agreement as a result of such Voluntary
Termination. The amount of such Voluntary Termination Payment
shall constitute Additional Rent under the Lease.
(b) Landlord and Tenant agree that upon Landlord's receipt
of the Conversion Notice and Tenant's payment of the amounts, if
any, required under the preceding Paragraph 3(a), Landlord shall
give the Qualifying Financial Institution notice of a Voluntary
Termination of the Qualifying Exchange Agreement in the form
attached hereto as Exhibit A. In the event that there is more
than one Qualifying Exchange Agreement with respect to the Lease,
such notice of Voluntary Termination shall be given by Landlord
with respect to each such Qualifying Exchange Agreement.
(c) In the event that Landlord's Voluntary Termination of a
Qualifying Exchange Agreement results in a Voluntary Termination
Receipt, the amount of such Voluntary Termination Receipt shall
be payable directly to Tenant by the Qualifying Financial
Institution.
(d) Upon the effective date of any Voluntary Termination,
the Tenant's obligation to pay Basic Rent shall convert to an
obligation to pay Basic Dollar Rent, as set forth in Paragraph
2(c) of this Lease Modification Agreement, and Paragraphs 2(a)
and 2(b) of this Lease Modification Agreement shall be of no
further force and effect.
4. Restrictions on Landlord's Actions
(a) Landlord shall take no action to effect a Voluntary
Termination of the Qualifying Exchange Agreement unless it
receives a Conversion Notice as provided under Paragraph 3(a).
(b) Landlord shall not seek to effect an early termination
of the Qualifying Exchange Agreement other than as set forth in
Paragraph 3(a) hereof or except as such Qualifying Exchange
Agreement expressly authorizes it to do so. Landlord shall also
take no action which will give the Qualifying Financial
Institution a right to effect any other early termination of the
Qualifying Exchange Agreement. Nothing herein shall require
Landlord to make Yen payments to the Qualifying Financial
Institution under the Qualifying Exchange Agreement if the Basic
Yen Rents corresponding to such Yen payments have not been paid
to Landlord or if such Yen payments have been paid at Landlord's
direction to the Qualifying Financial Institution. Without
limiting the generality of the foregoing, Landlord shall take no
action which would result in an Event of Default or Termination
Event under a Qualifying Exchange Agreement including without
limitation by reason of a Merger without Assumption or a Tax
Event Upon Merger (as therein defined).
(c) Landlord shall not assign its rights to the Lease
(other than as security) unless, as part of such assignment, the
assignee becomes a party to any Qualifying Exchange Agreement
then outstanding and assumes, in whole and not in part,
Landlord's obligations thereunder. In addition, Landlord shall
not assign its rights under any Qualifying Exchange Agreement
(other than as security) unless, as part of such assignment, the
assignee becomes a party to the Lease and assumes, in whole and
not in part, Landlord's obligations thereunder.
5. Governing Law; Other
(a) This Lease Modification Agreement shall be governed by
and construed according to the laws of the state in which the
Leased Premises are situated.
(b) The parties hereto agree that it is intended that the
Lease and the Lease Modification Agreement together (i) represent
a single indivisible agreement between the parties and (ii) are
interdependent and interrelated.
IN WITNESS WHEREOF, Remainder Landlord, Landlord and Tenant
have caused this instrument to be executed under seal as of the
day and year first above written.
LANDLORD:
NPDC-EY BREA TRUST
By:
M. ▇▇▇▇▇ ▇▇▇▇
Its:
Administrative Trustee
REMAINDER LANDLORD
NPDC-RI BREA TRUST
By:
M. ▇▇▇▇▇ ▇▇▇▇
Its:
Administrative Trustee
TENANT:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its:
Vice President and Controller
