EXHIBIT 10.46
TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AND RELEASE AGREEMENT ("Termination Agreement") is
made and entered into as of the 27th day of February, 2003, by and between LEASE
PLAN NORTH AMERICA, INC., an Illinois corporation as Lessor ("LPNA"), ABN AMRO
BANK N.V. (f/k/a ABN AMRO BANK N.V., SAN FRANCISCO INTERNATIONAL BRANCH), as a
Participant ("ABN AMRO") and as Agent on behalf of all other Participants (in
such capacity, the "Agent"), and PEOPLESOFT, INC., a Delaware corporation, as
Lessee ("Peoplesoft"). Capitalized terms used but not defined herein shall have
the meanings ascribed thereto in the Participation Agreement (as defined below).
RECITALS
WHEREAS, (i) ABN AMRO, as a Participant and in its role as Agent for
the various Participants, CREDIT LYONNAIS LOS ANGELES BRANCH, as a Participant,
THE INDUSTRIAL BANK OF JAPAN, LIMITED SAN FRANCISCO AGENCY, as a Participant,
KEYBANK NATIONAL ASSOCIATION, as a Participant, FLEET BANK, N.A., as a
Participant, THE DAI-ICHI KANGYO BANK, LIMITED SAN FRANCISCO AGENCY, as a
Participant, GE CAPITAL CORPORATION, as a Participant, BANK OF NOVA SCOTIA, as a
Participant, BNP PARIBAS, as a Participant, THE FUJI BANK, LIMITED, as a
Participant, XXXXX FARGO BANK, as a Participant (together with their permitted
successors and assigns, each a "Participant" and collectively the
"Participants"), LPNA and Peoplesoft, entered into that certain Participation
Agreement dated as of December 4, 1996 as amended by that certain First
Amendment to Participation Agreement, Master Lease, Lease Supplement and Deed of
Trust, dated as of December 4, 1996 (the "First Amendment") and that certain
Second Amendment to Participation Agreement, Master Lease, Lease Supplement and
Deed of Trust, dated as of September 28, 1998 (the "Second Amendment") (as
further amended from time to time, the "Participation Agreement"), (ii) LPNA and
Peoplesoft entered into that certain Master Lease dated as of December 4, 1996
(as amended, the "Lease") and (iii) Peoplesoft, Inc., a Delaware corporation
(the "Guarantor") and Agent entered into that certain Guarantee, dated as of
December 4, 1996, for the benefit of the Original Participants (the
"Guarantee");
WHEREAS, pursuant to the Participation Agreement and the Lease, LPNA
and the Participants have provided certain credit facilities for the benefit of
Peoplesoft (collectively, the "Credit Facility");
WHEREAS, below is the amount required to be paid to the Agent (for
distribution among the Agent and the Participants in accordance with the
provisions of the Participation Agreement), calculated as of February 27, 2003
(the "Payoff Calculation Date"), in order (i) to pay off and satisfy all
outstanding obligations of Peoplesoft (both in its capacity as Lessee and
Guarantor) and LPNA under the Lease, Credit Facility, all other Operative
Documents and the certificates, instruments, documents and agreements relating
thereto and (ii) to allow Peoplesoft to purchase the Project (defined below);
WHEREAS, the parties have previously entered into various agreements
more particularly described herein, in connection with certain real property
located in the County of Alameda, State of California and more particularly
described in the Operative Documents (the "Project"); and
WHEREAS, Peoplesoft exercised the Purchase Option under Section 20.1
of the Lease pursuant to a Purchase Notice delivered to ABN AMRO on February 6,
2003 (the "Purchase Notice"). In connection with the closing of the purchase of
the Project pursuant to the Purchase Notice, the parties desire to terminate and
release certain agreements and LPNA desires to convey the Project to Peoplesoft
upon the satisfaction of the conditions set forth below.
NOW, THEREFORE, for good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENTS
1. Purchase Calculation. The following is the amount (the "Payoff Sum") required
to be paid by Peoplesoft to the Agent (for distribution among the Agent and the
Participants in accordance with the provisions of the Participation Agreement)
pursuant to Section 20.1 of the Lease, calculated as of the Payoff Calculation
Date, in order to pay off and satisfy all outstanding obligations of Peoplesoft
(both in its capacity as Lessee and Guarantor) and LPNA under the Lease, the
Credit Facility and all other Operative Documents and the certificates,
instruments, documents and agreements relating thereto:
Principal Balance: $70,000,000.00
Interest through Payoff Calculation Date: $ 229,361.81
Total Through Payoff Calculation Date $70,229,361.81
Date: February 27, 2003
If the payoff sum, is not received on the Payoff Calculation Date, a
per diem charge of $12,025.58 should be added each day thereafter for interest
accruing from the Payoff Calculation Date through the date that the Payoff Sum
is actually received by the Agent. Any payment received by the Agent other than
on a business day of the Agent (or after 12:00 pm CST on any business day) shall
be deemed not to have been received until the following business day. Wire
instructions for delivery of the Tranche A and B Payoff Amount are set forth
below:
Bank: ABN AMRO Bank, N.V., New York
ABA Routing #: 000000000
Account Name: ABN AMRO Bank N.V. Chicago CPU
Account #: 000-000-000000
Reference: Peoplesoft
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If payment will not be received by the Payoff Calculation Date, a new
calculation of the payoff sum should be requested from the Agent.
2. Fees of Counsel to Agent. In addition to the payment described in Paragraph 1
above, the sum of $10,354.54 is the amount required to be paid by Peoplesoft to
counsel for the Agent, calculated as of the Payoff Calculation Date. The total
amount due under this Paragraph 2 is the sum of the following amounts:
Outstanding Invoices $3,379.82
Fees Incurred in Connection with the
Termination through February 27, 2003 $6,404.72
Estimated Fees to be Incurred to Complete the
Termination and any Post-Termination Work $ 570.00
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Total $10,354.54
Wire instructions for delivery of fees to Counsel for the Agent are
set forth below:
BANK OF AMERICA - Xxxxxx & Xxxx Xxxxxxx, Xxxxxxxx, XX 00000
ABA: 000000000
Credit: McGuireWoods Operating Account
Account Number: 000003664964
Reference: (W. Xxxx Xxxxx 2027792/0020)
McGuireWoods Accounting Contact: Xxxxx X. Xxxxxxx (000)-000-0000
Bank Contact: Xxxxxxx Xxxxx (000)-000-0000, Opt. 2, Ext. 21600
3. Termination of Agreements. Upon Agent's receipt of the payment required in
Paragraph 1 above, each of the following agreements, as amended from time to
time, together with all other Operative Documents and any of the certificates,
instruments, documents and agreements relating thereto (each an "Agreement" and
collectively the "Agreements"), is hereby terminated and the parties thereto
released subject to the provisions of Paragraph 4 below, as of the date hereof:
(a) PARTICIPATION AGREEMENT, dated as of December 4, 1996, between
Peoplesoft, LPNA, ABN AMRO and the other banks and financial institutions from
time to time party thereto; as amended by that certain First Amendment and
Second Amendment;
(b) MASTER LEASE, between LPNA and Peoplesoft dated as of December 4,
1996, as amended by that certain First Amendment and the Second Amendment;
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(c) LEASE SUPPLEMENT NO. 1 (AND MEMORANDUM OF LEASE), dated as of
December 4, 1996, between LPNA and Peoplesoft as recorded on February 7, 1997 in
the real property records for Alameda County, California at Reception No.
97039047, as amended by the First Amendment and Second Amendment;
(d) CASH COLLATERAL AGREEMENT, dated as of December 4, 1996, between
Peoplesoft, LPNA and Agent (the "Cash Collateral Agreement");
(e) GUARANTEE, dated as of December 4, 1996, between Peoplesoft and
Agent for the Original Participants;
(f) CONSTRUCTION DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING AND
FINANCING STATEMENT, dated as of December 4, 1996 made by LPNA, as Trustor, to
the Chicago Title Insurance Company, as Trustee for the benefit of the Agent as
recorded on February 7, 1997 in the real property records for Alameda County,
California at Reception No. 97039045, as amended by the First Amendment and
Second Amendment to Participation Agreement;
(g) ASSIGNMENT OF LEASE, dated as of December 4, 1996 between LPNA and
Agent as recorded on February 7, 1997 in the real property records for Alameda
County, California at Reception No. 97039046, for the Original Participants;
(h) SUPPLEMENT TO ASSIGNMENT OF LEASE, dated as of February 7, 1997,
between LPNA and Agent;
(i) CONSENT OF CONSTRUCTION AGENT TO ASSIGNMENT OF CONSTRUCTION AGENCY,
dated as of December 4, 1996, by Peoplesoft;
(j) CONSTRUCTION AGENCY AGREEMENT, dated as of December 4, 1996 between
LPNA and Peoplesoft, as Construction Agent;
(k) ASSIGNMENT OF CONSTRUCTION DOCUMENTS, dated as of December 4, 1996
between Peoplesoft and LPNA;
(l) ASSIGNMENT OF CONSTRUCTION AGENCY AGREEMENT, dated as of December
4, 1996 between LPNA and ABN AMRO as Agent;
(m) CONSENT AND ACKNOWLEDGEMENT BY PEOPLESOFT, dated as of December 4,
1996 by Peoplesoft consenting to and acknowledging the assignment of
Construction Agency Agreement dated December 4, 1996; and
(n) UCC FINANCING STATEMENTS, each of the UCC Financing Statements
listed on Exhibit A attached hereto.
4. No Release of Indemnities. Effective as of the Payoff Calculation Date, LPNA
and Agent do each hereby release Peoplesoft and its Affiliates and Subsidiaries
from each and all of their obligations and any claims and demands of every kind
and nature, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in connection with the Credit Facility, the
Operative Documents and any of the certificates, instruments, documents and
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agreements relating thereto; provided, however, that neither LPNA nor Agent
waives or releases Peoplesoft and its Affiliates and Subsidiaries from any
obligations, claims or demands arising from indemnifications or liabilities or
obligations contained in the Operative Documents and any of the certificates,
instruments, documents and agreements relating thereto, which, by their
respective terms, expressly survive the termination of such agreements.
5. Waiver. Pursuant to the Purchase Notice, Peoplesoft advised Agent of its
exercise of the Purchase Option pursuant to Section 20.1 of the Lease. Pursuant
to the Purchase Notice, Peoplesoft has requested that the provisions of Section
20.1 of the Lease requiring delivery of a written notice not less than sixty
(60) days prior to the purchase of the Project pursuant to the Purchase Option
be waived. Agent, LPNA and the Participants hereby waive Peoplesoft's compliance
with the provisions of Section 20.1 of the Lease requiring delivery of a written
notice not less than sixty (60) days prior to the purchase of the Project
pursuant to the Purchase Option.
6. Execution of Additional Documents. LPNA and Agent each agree, at Peoplesoft's
sole cost and expense, to promptly execute such additional documents and
instruments as are necessary or desirable to evidence the releases and
terminations set forth in this Termination Agreement.
7. Counterparts. This Termination Agreement may be signed in two or more
counterparts. When at least one such counterpart has been signed by each party,
this Termination Agreement shall be deemed to have been fully executed, each
counterpart shall be deemed to be an original, and all counterparts shall be
deemed to be one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Termination
Agreement to be executed by their respective duly authorized officers as of the
day and year first above written.
PEOPLESOFT, INC.
as Lessee
By: /s/ XXXXX X. XXXXXXXXXX
---------------------------------------
Name: Xxxxx X.Xxxxxxxxxx
Title: Vice President and Corporate Controller
LEASE PLAN NORTH AMERICA, INC.
as Lessor
By: /s/ XXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
ABN AMRO BANK N.V., not in its individual capacity,
except as expressly stated herein, but solely as
Agent
By: /s/ XXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
By: /s/ XXXX XXXXXX
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
EXHIBIT A
UCC FINANCING STATEMENTS
UCC-1 FILING UCC-3 FILING
JURISDICTION FILING NO. DATE FILING NO. DATE DOCUMENT
Delaware 20211296 1/25/02
Delaware 20432421 2/19/02
Illinois 4663527 1/25/02
Illinois 4794117 2/19/02
