EXHIBIT 10.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND ACKNOWLEDGEMENT AND CONSENT
This Assignment and Assumption Agreement and Acknowledgement and
Consent (the "Agreement") is entered into as of the 30th day of September, 2003,
by and among X.X. Xxxxxxx & Company, LLC, a Delaware limited liability company
("JDE LLC"), PeopleSoft, Inc., a Delaware corporation ("PeopleSoft") and Selco
Service Corporation, an Ohio corporation ("Selco").
W I T N E S S E T H
WHEREAS, on August 29, 2003, Jersey Acquisition Corporation, a Delaware
corporation, merged with and into X.X. Xxxxxxx & Company, a Delaware corporation
("X.X. Xxxxxxx"), with X.X. Xxxxxxx being the surviving entity, and thereafter,
X.X. Xxxxxxx merged with and into JDE LLC, which is wholly-owned by PeopleSoft,
with JDE LLC being the surviving entity (collectively, the "Mergers"); and
WHEREAS, Selco and JDE LLC, as successor-in-interest to X.X. Xxxxxxx,
are parties to the following off-balance sheet lease financing transactions:
a. Off-Balance Sheet Lease Financing for X.X. Xxxxxxx & Company
for the Acquisition of a First Headquarters Building in Denver, Colorado
(original closing date of August 26, 1998) ("Phase I Financing");
b. Off-Balance Sheet Lease Financing for X.X. Xxxxxxx & Company
for the Construction of a Second and Third Headquarters Buildings in Denver,
Colorado (original closing dates of November 15, 1997 and March 15, 1998)
("Phases II/III Financing"); and
c. Off-Balance Sheet Lease Financing for X.X. Xxxxxxx & Company
for the Acquisition and Construction of the Fourth Headquarters Building in
Denver, Colorado (original closing date of November 10, 1998) ("Phase IV
Financing"); and
WHEREAS, the Phase I Financing, the Phases II/III Financing and the
Phase IV Financing shall sometimes be collectively referred to herein as the
"Financings"; and
WHEREAS, in connection with the Mergers, JDE LLC assumed all of the
obligations of X.X. Xxxxxxx under the Financings and Selco acknowledged such
assumption; and
WHEREAS, JDE LLC desires to assign to PeopleSoft and PeopleSoft desires
to assume from JDE LLC all of the rights and interests of JDE LLC in, to and
under the Financing Documents (as defined below); and
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WHEREAS, PeopleSoft desires to assume from JDE LLC all liabilities and
obligations of JDE LLC under the Financing Documents (while having JDE LLC also
remain primarily liable thereunder as a principal and not as a surety); and
WHEREAS, all of the Financings prohibit the assignment by JDE LLC of
any of its rights under the Financings, unless certain conditions are met in
full (the "Assignment Conditions"); and
WHEREAS, Selco, JDE LLC and PeopleSoft desire to enter into this
Agreement for the purpose of satisfying the Assignment Conditions.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, Selco, JDE LLC and PeopleSoft
hereby agree as follows:
1. Definitions.
(a) "Phase I Financing Documents" shall mean all documents,
instruments or agreements evidencing, securing or otherwise related to the Phase
I Financing, or creating or securing obligations of JDE LLC under the Phase I
Financing, including any amendments, modifications, renewals, increases,
replacements and extensions thereof; including without limitation the following
documents, instruments and agreements:
(i) Master Lease Agreement dated as of August 26, 1998 by and
between Selco, as owner-lessor, and JDE LLC, as lessee,
together with Lease Supplement No. 1 dated as of August 26,
1998; as amended by Amendment to Master Lease Agreement,
Memorandum of Lease (including Lease Supplement No. 1), and
Lessee Collateral Assignment and Security Agreement in Respect
of Contracts, Licenses and Permits dated as of November 5,
1998 and recorded in the land records of Denver, Colorado on
November 9, 1998 under Reception No. 9800187417; as further
amended by Amendment to Master Lease Agreement dated July 9,
1999; as further amended by Amendment No. 3 to Master Lease
Agreement dated November 12, 1999; and as further amended by
Amendment to Definitions Appendix dated as of August 31, 2000
(collectively, the "Phase I Master Lease");
(ii) Memorandum of Lease (including Lease Supplement No. 1) dated
as of August 26, 1998 and recorded in the land records of
Denver, Colorado on August 27, 1998 under Reception No.
9800142715; as amended by Amendment to Master Lease Agreement,
Memorandum of Lease (including Lease Supplement No. 1), and
Lessee Collateral Assignment and Security Agreement in Respect
of Contracts, Licenses and Permits dated as of November 5,
1998 and recorded in the land records of Denver, Colorado on
November 9, 1998 under Reception No. 9800187417;
(iii) Lessee Collateral Assignment and Security Agreement in Respect
of Contracts, Licenses and Permits dated as of August 26, 1998
from JDE
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LLC, to Selco and recorded in the land records of Denver,
Colorado on August 27, 1988 under Reception No. 9800142719; as
amended by Amendment to Master Lease Agreement, Memorandum of
Lease (including Lease Supplement No. 1), and Lessee
Collateral Assignment and Security Agreement in Respect of
Contracts, Licenses and Permits dated as of November 5, 1998
and recorded in the land records of Denver, Colorado on
November 9, 1998 under Reception No. 9800187417;
(iv) The following Uniform Commercial Code financing statements
naming JDE LLC as debtor:
(1) naming Selco, as secured party, assigned to KeyBank
National Association, as agent, filed with the Denver
County Clerk and Recorder on August 27, 1998 under
Reception No. 9800142724, as amended by UCC-3 filed
with the Denver County Clerk and Recorder on November
10, 1998 under Reception No. 9800188462, as affected
by UCC-3 filed with the Denver County Clerk and
Recorder on March 29, 1999 under Reception No.
9900055508, as continued with the Denver County Clerk
and Recorder on August 21, 2003 under Reception No.
2003175830 and as amended on August 28, 2003 under
Reception No. 0000000000;
(2) naming Selco, as secured party, and KeyBank National
Association, as additional secured party, filed with
the Colorado Secretary of State on August 31, 1998
under Reception No. 19982055672, as amended by UCC-3
filed with the Colorado Secretary of State on
November 12, 1998 under Reception No. 19982070040, as
filed "in lieu" with the Delaware Secretary of State
on August 19, 2003 as Filing No. 32158908 and as
amended on August 25, 2003 as Filing No. 32213422;
(3) naming Selco, as secured party, assigned to KeyBank
National Association, as agent, filed with the
Colorado Secretary of State on August 31, 1998 under
Reception No. 19982055673, as amended by UCC-3 filed
with the Colorado Secretary of State on November 12,
1998 under Reception No. 19982070039, as filed "in
lieu" with the Delaware Secretary of State on August
19, 2003 as Filing No. 32158916 and as amended on
August 25, 2003 as Filing No. 32213240;
(4) naming Selco, as secured party, assigned to KeyBank
National Association, as agent, filed with the Denver
County Clerk and Recorder on August 27, 1998 under
Reception No. 9800142723, as amended by UCC-3 filed
with the Denver County Clerk and Recorder on November
10, 1998 under Reception No. 9800188461, as continued
with the Denver County Clerk and
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Recorder on August 19, 2003 under Reception No.
2003174372 and as amended on August 28, 2003 under
Reception No. 2003182800; and
(5) naming KeyBank National Association, as agent, as
secured party, filed with the Colorado Secretary of
State on June 16, 1999 under Reception No.
19992034067, as filed "in lieu" with the Delaware
Secretary of State on August 19, 2003 as Filing No.
32158940, as amended on August 25, 2003 as Filing No.
32213133, and as amended on September 17, 2003 as
Filing No. 32422320.
(v) Subordination, Recognition, Nondisturbance and Attornment
Agreement dated as of August 26, 1998 by and between JDE LLC
and KeyBank National Association, a national banking
association, as Agent for itself and other Lenders and
recorded in the land records of Denver, Colorado on August 27,
1998 under Reception No. 9800142720; as amended by Amendment
to Subordination, Recognition, Nondisturbance and Attornment
Agreement dated October 27, 1998 and recorded in the land
records of Denver, Colorado on November 9, 1998 under
Reception No. 9800187419;
(vi) Pledge and Security Agreement dated as of August 26, 1998 from
JDE LLC in favor of Selco and KeyBank National Association, a
national banking association, as agent for various lenders; as
amended by Side Letter Agreement dated May 13, 1999; as
further amended by Amendment to Pledge and Security Agreement
dated November 30, 2001 and as further amended by Side Letter
Agreement dated August 29, 2003 (collectively, the "Phase I
Pledge Agreement");
(vii) Environmental Indemnity Agreement dated as of August 26, 1998
from JDE LLC, X.X. Xxxxxxx World Solutions Company, a Colorado
corporation, and X.X. Xxxxxxx World Service Company, a
Colorado corporation;
(viii) Construction Agency Agreement dated as of August 26, 1998 by
and between JDE LLC and Selco; and
(ix) Assignment Agreement dated as of August 26, 1998 by and
between JDE LLC and Selco in connection with a certain
Purchase and Sale Agreement dated as of August 6, 1998.
(b) "Phases II/III Financing Documents" shall mean all documents,
instruments or agreements evidencing, securing or otherwise related to the
Phases II/III Financing, or creating or securing obligations of JDE LLC under
the Phases II/III Financing, including any amendments, modifications, renewals,
increases, replacements and extension thereof; including without limitation to
following documents, instruments and agreements:
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(i) Ground Lease dated November 15, 1997 between JDE LLC and
Selco; as amended by Amendment No. 1 to Ground Lease dated as
of March 15, 1998 ("Phases II/III Ground Lease");
(ii) Memorandum of Ground Lease dated as of November 21, 1997 by
and between JDE LLC and Selco and recorded in the land records
of Denver, Colorado on November 24, 1997 under Reception No.
9700159090;
(iii) Master Lease Agreement dated as of November 15, 1997 by and
between Selco, as owner-lessor, and JDE LLC, as lessee,
together with First Lease Supplement dated as of November 15,
1997, as amended and restated by Amended and Restated First
Lease Supplement dated as of March 15, 1998, and together with
Second Lease Supplement dated as of March 15, 1998; as amended
by Amendment No. 1 to Master Lease dated as of March 15, 1998;
as further amended by Amendment to Master Lease Agreement
dated July 9, 1999; as further amended by Amendment No. 3 to
Master Lease Agreement dated November 12, 1999; and as further
amended by Amendment to Definitions Appendix dated as of
August 31, 2000 (collectively, the "Phases II/III Master
Lease");
(iv) Memorandum of Lease dated as of November 21, 1997 and recorded
in the land records of Denver, Colorado on November 24, 1997
under Reception No. 9700159091; as amended and restated by
Amended and Restated Memorandum of Lease dated as of April 2,
1998 and recorded in the land records of Denver, Colorado on
April 2, 1998 under Reception No. 9800050216;
(v) Construction Agency Agreement dated as of November 15, 1997 by
and between JDE LLC and Selco, as amended by Amendment No. 1
to Phase II Construction Agency Agreement dated as of March
15, 1998, together with Phase III Construction Agency
Agreement dated as of March 15, 1998 by and between JDE LLC
and Selco;
(vi) Pledge and Security Agreement dated as of November 15, 1997
from JDE LLC in favor of Selco and KeyBank National
Association, a national banking association; as amended by
Amendment No. 1 to Pledge and Security Agreement dated as of
March 15, 1998; as further amended by Side Letter Agreement
dated May 13, 1999; as further amended by Amendment to Pledge
and Security Agreement dated November 30, 2001; and as further
amended by Side Letter Agreement dated August 29, 2003
(collectively, the "Phase II/III Pledge Agreement");
(vii) The following Uniform Commercial Code Financing Statements
naming JDE LLC, as debtor:
(1) naming Selco, as secured party, assigned to KeyBank
National Association, filed with the Delaware
Secretary of State on August
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20, 2003 as Filing No. 32171877 and as amended on
August 25, 2003 as Filing No. 32213091;
(2) naming Selco, as secured party, assigned to KeyBank
National Association, filed with the Delaware
Secretary of State on August 20, 2003 as Filing No.
32171885 and as amended on August 25, 2003 as Filing
No. 32213380;
(3) naming Selco, as secured party, assigned to KeyBank
National Association, filed with the Denver County
Clerk and Recorder on August 21, 2003 under Reception
No. 0000000000 and as amended on August 28, 2003
under Reception No. 2003182802; and
(4) naming KeyBank National Association, as agent, as
secured party, filed with the Colorado Secretary of
State on June 16, 1999 under Reception No.
19992034066, as filed "in lieu" with the Delaware
Secretary of State on August 19, 2003 as Filing No.
32158932 and as amended on August 25, 2003 as Filing
No. 32213059, and as amended on September 17, 2003 as
Filing No. 32422338.
(viii) Deed of Trust, Security Agreement and Fixture Financing
Statement dated as of November 15, 1997 from JDE LLC to the
Public Trustee in and for the City and County of Denver,
Colorado, for the benefit of Selco, and recorded in the land
records of Denver, Colorado on November 24, 1997 under
Reception no. 9700159088; as assigned to KeyBank National
Association, a national banking association, by Assignment
dated as of November 15, 1997 and recorded in the land records
of Denver, Colorado on November 24, 1997 under Reception No.
9700159089, as amended and restated by that certain Amended
and Restated Deed of Trust, Security Agreement and Fixture
Financing Statement dated as of March 15, 1998 and recorded in
the land records of Denver, Colorado on April 2, 1998 under
Reception No. 9800050214;
(ix) Estoppel Certificate from JDE LLC in connection with the
Phases II/III Master Lease dated as of November 24, 1997;
(x) Collateral Assignment and Security Agreement with Respect of
Contracts, Licenses and Permits dated as of April 1, 1998 from
JDE LLC to Selco;
(xi) Environmental Indemnity dated as of November 15, 1997 from JDE
LLC, X.X. Xxxxxxx World Solutions Company, a Colorado
corporation, and X.X. Xxxxxxx World Source Company, a Colorado
corporation; as amended and restated by Amended and Restated
Environmental Indemnity Agreement dated as of April 1, 1998;
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(xii) Recognition, Non-Disturbance and Attornment Agreement dated as
of November 15, 1997 by and between JDE LLC and KeyBank
National Association, a national banking association and
recorded in the land records of Denver, Colorado on November
24, 1997 under Reception No. 0000000000; as amended and
restated by Amended and Restated Recognition, Non-Disturbance
and Attornment Agreement dated as of March 15, 1998 and
recorded in the land records of Denver, Colorado on April 2,
1998 under Reception No. 9800050220; and
(xiii) Subordination and Agreement Relative to Deed of Trust dated as
of November 15, 1997 from JDE LLC in favor of KeyBank National
Association, a national banking association, and recorded in
the land records of Denver, Colorado on November 24, 1997
under Reception No. 9700159092; as amended and restated by
Amended and Restated Subordination and Agreement Relative to
Deed of Trust dated as of March 15, 1998.
(c) "Phase IV Financing Documents" shall mean all documents,
instruments or agreements evidencing, securing or otherwise related to the Phase
IV Financing, or creating or securing obligations of JDE LLC under the Phase IV
Financing, including any amendments, modifications, renewals, increases,
replacements and extensions thereof; including without limitation the following
documents, instruments and agreements:
(i) Ground Lease dated November 10, 1998 between JDE LLC and
Selco; as amended by Amendment of Ground Lease, Master Lease
and Other Documents recorded in the land records of Denver,
Colorado on July 11, 2001 under Reception No. 0000000000
("Phase IV Ground Lease");
(ii) Master Lease Agreement dated as of November 10, 1998 by and
between Selco, as owner-lessor, and JDE LLC, as lessee,
together with Lease Supplement No. 1 dated as of November 10,
1998; as amended by First Amendment to Master Lease Agreement
and other Transaction Documents dated February 22, 1999; as
further amended by Amendment to Master Lease dated July 9,
1999; as further amended by Amendment No. 2 to Master Lease
Agreement dated November 12, 1999; as further amended by
Amendment to Definitions Appendix dated as of August 31, 2000;
and as further amended by Amendment of Ground Lease, Master
Lease and Other Documents recorded in the land records of
Denver, Colorado on July 11, 2001 under Reception No.
0000000000 (collectively, the Phase IV Master Lease");
(iii) Memorandum of Ground Lease dated as of November 10, 1998 by
and between JDE LLC and Selco and recorded in the land records
of Denver, Colorado on November 10, 1998 under Reception No.
9800188464; as amended by Amendment of Ground Lease, Master
Lease and Other Documents recorded in the land records of
Denver, Colorado on July 11, 2001 under Reception No.
0000000000;
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(iv) Memorandum of Lease (including Lease Supplement No. 1) dated
as of November 10, 1998 by and between JDE LLC and Selco and
recorded in the land records of Denver, Colorado on November
10, 1998 under Reception No. 0000000000; as amended by
Amendment of Ground Lease, Master Lease and Other Documents
recorded in the land records of Denver, Colorado on July 11,
2001 under Reception No. 0000000000;
(v) Deed of Trust, Security Agreement and Fixture Financing
Statement dated as of November 10, 1998 from JDE LLC to the
Public Trustee in and for the City and County of Denver,
Colorado, for the benefit of Selco, and recorded in the land
records of Denver, Colorado on November 10, 1998 under
Reception No. 9800188463; as affected by Request to Release of
Deed of Trust and Release recorded in the land records of
Denver, Colorado on July 31, 2001 under Reception No.
2001125369;
(vi) Lessee Collateral Assignment and Security Agreement in Respect
of Contracts, Licenses and Permits dated as of November 10,
1998 from JDE LLC to Selco and recorded in the land records of
Denver, Colorado on November 10, 1998 under Reception No.
9800188470; as amended by Amendment of Ground Lease, Master
Lease and Other Documents recorded in the land records of
Denver, Colorado on July 11, 2001 under Reception No.
0000000000;
(vii) The following Uniform Commercial Code financing statements
naming JDE LLC as debtor:
(1) naming Selco, as secured party, assigned to KeyBank
National Association, as agent, filed with the Denver
County Clerk and Recorder on November 10, 1998 under
Reception No. 9800188472, as amended by UCC-3 filed
with the Denver County Clerk and Recorder on March
29, 1999 under Reception No. 9900055510, as amended
by UCC-3 filed with the Denver County Clerk and
Recorder on July 11, 2001 under Reception No.
2001113103, as continued with the Denver County Clerk
and Recorder on August 21, 2003 under Reception No.
2003175831 and as amended on August 28, 2003 under
Reception No. 2003182798;
(2) naming Selco, as secured party, assigned to KeyBank
National Association, as agent, filed with the
Colorado Secretary of State on November 12, 1998
under Reception No. 19982070038, as filed "in lieu"
with the Delaware Secretary of State on August 19,
2003 as Filing No. 32158924 and as amended on August
25, 2003 as Filing No. 32213208;
(3) naming Selco, as secured party, assigned to KeyBank
National Association, as agent, filed with the Denver
County Clerk and
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Recorder on November 10, 1998 under Reception No.
0000000000, as affected by UCC-3 filed with the
Denver County Clerk and Recorder on March 29, 1999
under Reception No. 0000000000, as continued with the
Denver County Clerk and Recorder on August 19, 2003
under Reception No. 0000000000 and as amended on
August 28, 2003 under Reception No. 2003182801; and
(4) naming KeyBank National Association, as agent, as
secured party, filed with the Colorado Secretary of
State on June 16, 1999 under Reception No.
19992034068, as filed "in lieu" with the Delaware
Secretary of State on August 19, 2003 as Filing No.
32158957, as amended on August 25, 2003 as Filing No.
32213406 and as amended on September 17, 2003 as
Filing No. 32422346.
(viii) Recognition, Non-Disturbance and Attornment Agreement dated as
of November 10, 1998 by and between JDE LLC and KeyBank
National Association, a national banking association, as Agent
for itself and other Lenders, and recorded in the land records
of Denver, Colorado on November 10, 1998 under Reception No.
9800188471; as amended by Amendment of Ground Lease, Master
Lease and Other Documents recorded in the land records of
Denver, Colorado on July 11, 2001 under Reception No.
0000000000;
(ix) Subordination and Agreement Relative to Owner Deed of Trust
dated as of November 10, 1998 from JDE LLC in favor of Selco
and KeyBank National Association, a national banking
association, as Agent for the Lenders and recorded in the land
records of Denver, Colorado on November 10, 1998 under
Reception No. 9800188466; as amended by Amendment of Ground
Lease, Master Lease and Other Documents recorded in the land
records of Denver, Colorado on July 11, 2001 under Reception
No. 0000000000;
(x) Pledge and Security Agreement dated as of November 10, 1998
from JDE LLC to Selco and KeyBank National Association, a
national banking association, as agent for various lenders; as
amended by First Amendment to Master Lease Agreement and other
Transaction Documents dated February 22, 1999; as further
amended by Side Letter Agreement dated May 13, 1999; as
further amended by Amendment of Ground Lease, Master Lease and
Other Documents recorded in the land records of Denver,
Colorado on July 11, 2001 under Reception No. 0000000000; as
further amended by Amendment to Pledge and Security Agreement
dated November 19, 2001; and as further amended by Side Letter
Agreement dated August 27, 2003 (collectively, the "Phase IV
Pledge Agreement");
(xi) Environmental Indemnity Agreement dated as of November 10,
1998 from JDE LLC, X.X. Xxxxxxx World Solutions Company, a
Colorado
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corporation, and X.X. Xxxxxxx World Source Company, a Colorado
corporation; as amended by Amendment of Ground Lease, Master
Lease and Other Documents recorded in the land records of
Denver, Colorado on July 11, 2001 under Reception No.
0000000000; and
(xii) Construction Agency Agreement dated as of November 10, 1998 by
and between JDE LLC and Selco; as amended by Amendment of
Ground Lease, Master Lease and Other Documents recorded in the
land records of Denver, Colorado on July 11, 2001 under
Reception No. 0000000000.
Each of the Uniform Commercial Code Financing Statements described in
the foregoing Sections 1(a)(iv), 1(b)(vii) and 1(c)(vii) shall
sometimes be collectively referred to herein as the "UCC Financing
Statements".
2. Assignment. JDE LLC hereby transfers, assigns and conveys to
PeopleSoft all of JDE LLC's rights and interests in and to the Phase I Financing
Documents, the Phases II/III Financing Documents and the Phase IV Financing
Documents (which shall sometimes be collectively referred to herein as the
"Financing Documents"). Notwithstanding anything to the contrary herein, JDE LLC
shall remain primarily liable under the Financing Documents (as a principal and
not as a surety).
3. Assumption. PeopleSoft hereby accepts and assumes all such
right and interests assigned to it above and also hereby accepts and assumes all
past, current and future liabilities and obligations, and joins in all
representations, warranties, and indemnities, of JDE LLC under the Financing
Documents. Such assumption is absolute and irrevocable. PeopleSoft shall
perform, comply with and be bound by all the terms, covenants, agreements,
provisions and conditions of the Financing Documents on the part of JDE LLC to
be performed hereunder before and/or after the date hereof. Notwithstanding
anything to the contrary herein, the parties hereto agree and acknowledge that
nothing set forth in this Agreement or in any of the other documents executed in
connection herewith shall constitute a release of JDE LLC from any of its
liabilities or obligations under the Financing Documents, and that JDE LLC and
PeopleSoft each shall be primarily liable thereunder as principals and not as
sureties.
4. Representations. JDE LLC and PeopleSoft hereby represent and
warrant as follows:
(a) PeopleSoft is a corporation controlling JDE LLC by reason of
stock ownership of JDE LLC of greater than fifty percent (50%);
(b) JDE LLC and PeopleSoft will promptly and duly execute and
deliver to Selco such other documents and assurances, and will take such further
actions as Selco may from time to time reasonably request, in order to carry out
more effectively the intent and purposes of this Agreement and to establish and
protect the rights and remedies created or intended to be created in favor of
Selco hereunder or under the Financing Documents;
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(c) To the knowledge of JDE LLC and PeopleSoft, as applicable,
neither Selco nor KeyBank National Association (in its individual capacity or as
an agent for various lenders) is in default under any of the terms of the
Financing Documents, nor has any event occurred, which with the giving of notice
or the passage of time, or both, could constitute such a default;
(d) To the knowledge of JDE LLC and PeopleSoft, as applicable,
neither JDE LLC nor PeopleSoft has any claims, counterclaims, defenses or
set-offs against any other party to the Financing Documents;
(e) The assignment and assumption set forth herein and the
execution and delivery of this Agreement or any other document executed in
connection herewith will not constitute a violation of any law, order or
regulation applicable to JDE LLC or PeopleSoft or any contract or agreement to
which either is a party or by which any of its properties may be bound; and
(f) This Agreement and each and every document to be executed by
JDE LLC and/or PeopleSoft in connection herewith are duly authorized, executed
and delivered, and assuming the due authorization, execution and delivery
thereof by the other parties thereto (other than X.X. Xxxxxxx World Source
Company and X.X. Xxxxxxx World Solution Company) constitute the legal, valid and
binding obligations of JDE LLC and PeopleSoft in accordance with the respective
terms hereof and thereof, except as enforceability may be subject to the
exercise of judicial discretion in accordance with general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other laws
for the relief of debtors.
5. Covenants, Representations and Warranties. JDE LLC hereby
reaffirms, and PeopleSoft hereby affirms, that from and after the date hereof,
PeopleSoft shall be responsible for performing all covenants, representations
and warranties of JDE LLC in the Financing Documents. The foregoing shall not be
deemed in any way to release JDE LLC from liability under the Financing
Documents
6. Acknowledgement. In reliance on this Agreement, and provided
that the conditions precedent set forth in Section 8 of this Agreement have been
satisfied, Selco hereby acknowledges that except for the matters set forth in
Section 7, the assignment of the Financing Documents and the related collateral,
rights and interests to PeopleSoft does not require the consent of Selco under
the Financing Documents. JDE LLC and PeopleSoft agree and acknowledge that such
acknowledgement is a one time acknowledgement relating solely to the assignment
of the Financing Documents to PeopleSoft and shall not extend to any other
assignment of the Financing Documents. Selco, JDE LLC and PeopleSoft further
agree and acknowledge that all references in the Financing Documents to X.X.
Xxxxxxx or JDE LLC, or other terms used therein which refer to X.X. Xxxxxxx or
JDE LLC, shall be deemed to mean and to refer to PeopleSoft. Without limiting
the generality of the foregoing, Selco further acknowledges and agrees that upon
such assignment and assumption, PeopleSoft will be the lessee under the Phase I
Master Lease, the Phases II/III Master Lease and the Phase IV Master Lease.
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7. Consent. Selco hereby consents to the assignment by JDE LLC to
PeopleSoft of (a) JDE LLC's interest in the Phases II/III Ground Lease and the
Phase IV Ground Lease and (b) of JDE LLC's interest in the Phase I Pledge
Agreement, the Phase II/III Pledge Agreement, the Phase IV Pledge Agreement and
the related collateral. Selco hereby further consents to the conveyance to
PeopleSoft of the fee interest in the land described in the Phases II/III Ground
Lease and the Phase IV Ground Lease. JDE LLC and PeopleSoft agree and
acknowledge that such consent is a one time consent relating solely to the
assignments and conveyance to PeopleSoft and shall not extend to any other
assignment of the ground lessor's interest in the Phases II/III Ground Lease or
the Phase IV Ground Lease or to any other assignment of the Phase I Pledge
Agreement, the Phases II/III Pledge Agreement or the Phase IV Pledge Agreement,
or the related collateral, or to any other conveyance of the fee interest in the
land described therein.
8. Conditions Precedent to Acknowledgement and Consent. The
acknowledgement set forth in Section 6 of this Agreement and the consent set
forth in Section 7 of this Agreement shall become effective upon the execution
of this Agreement by Selco; provided, however, that the following conditions
shall be satisfied prior thereto (or in the case of the conditions set forth in
Section 8(c), Section 8(e) and Section 8(f), within the time periods set forth
therein):
(a) Selco shall have received two (2) executed originals of this
Agreement signed by JDE LLC and PeopleSoft;
(b) PeopleSoft shall have filed amendments to all UCC Financing
Statements (filed in respect of the Financings, and which name JDE LLC as the
debtor) in form and substance reasonably satisfactory to Selco for all UCC
Financing Statements which shall substitute PeopleSoft as the debtor;
(c) Within seven (7) days after the date of this Agreement, Selco
shall have received, at the sole expense of JDE LLC and PeopleSoft, endorsements
to all title insurance policies issued in favor of Selco or KeyBank National
Association in connection with the Financings, in form and substance reasonably
satisfactory to Selco, reflecting the assignment of all rights and interests in
the Financings from JDE LLC to PeopleSoft and the assumption of liabilities and
obligations under the Financings by PeopleSoft;
(d) Selco shall have received letters, in form and substance
acceptable to Selco, from McDonald Investments, Inc. (with respect to Account
Nos. 00000000, 00000000 and 61467382) acknowledging that PeopleSoft is the owner
of each account and that McDonald Investments, Inc. shall indicate on its books
and records that each account shall remain pledged by PeopleSoft, as debtor, to
Selco and KeyBank National Association, as agent;
(e) Within sixty (60) days after the date of this Agreement, Selco
shall have received an opinion of counsel for JDE LLC and PeopleSoft, in the
form delivered to Selco on the date hereof, with respect to the due
organization, legal existence and corporate power and authority of JDE LLC and
PeopleSoft to enter into and perform this
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Agreement and the enforceability of this Agreement and all other documents
executed in connection herewith against JDE LLC and PeopleSoft;
(f) Within three (3) days after the date of this Agreement, Selco
shall have received payment in full of all of Selco's costs and expenses related
to this Agreement;
(g) The representations and warranties set forth in Section 4 of
this Agreement shall be true and correct; and
(h) Selco shall have received the deeds, amendments, assignments
and assumption agreements attached hereto and incorporated herein by reference
as Exhibit 1.
9. Evidence of Filing of Amendments to UCC Financing Statements.
PeopleSoft shall provide Selco with evidence that the amendments to the UCC
Financing Statements required to be filed under Section 8(b) above have been
filed within three (3) weeks of the date of this Agreement. JDE LLC and
PeopleSoft hereby acknowledge and agree that if evidence of all required
amendments to the UCC Financing Statements is not provided to Selco according to
the terms of Section 8(b) above, the acknowledgement granted pursuant to this
Agreement shall be null and void and JDE LLC shall be deemed in default of its
obligations under the Financing Documents.
10. Notices. From and after the date of this Agreement, all
notices and other correspondence to be delivered to PeopleSoft or any Guarantor
(as defined in the Financing Documents) pursuant to any Financing Document shall
be sent to the following addresses:
PeopleSoft, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Vice President & Secretary
and to:
PeopleSoft, Inc.
0000 XxxxxxXxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxx, Vice President & Corporate
Treasurer
11. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Colorado and may not be
modified or amended in any manner other than by written agreement signed by the
party to charged therewith.
(b) This Agreement may be executing in counterparts, which
collectively shall constitute one instrument.
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(c) This Agreement shall be binding upon, and inure to the benefit
of the parties hereto and their respective successors and assigns.
(d) Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be valid under applicable law, but, if any
provision of this Agreement shall be invalid or prohibited thereunder, such
invalidity or prohibition shall be construed as if such invalid or prohibited
provision had not been inserted herein and shall not affect the remainder of
such provision or the remaining provisions of this Agreement.
(e) The language in all parts of this Agreement shall be in all
cases construed simply according to its fair meaning and not strictly for or
against any of the parties hereto for any reason, including without limitation,
by virtue of the fact that it may have been drafted or prepared by counsel for
one of the parties, it being recognized that all parties have contributed
materially and substantially to the preparation of this Agreement. Section and
Paragraph headings of this Agreement are solely for convenience of reference and
shall not govern the interpretation of any of the provisions of this Agreement.
(f) This Agreement is the complete agreement among the parties
hereto with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
X.X. XXXXXXX & COMPANY, LLC, a
Delaware limited liability company
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
duly authorized
PEOPLESOFT, INC, a Delaware
corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
duly authorized
SELCO SERVICE CORPORATION, an
Ohio corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
duly authorized
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The following parties hereby consent to the foregoing Agreement and the
terms thereof:
X.X. XXXXXXX WORLD SOURCE
COMPANY, a Colorado corporation
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP/Gen. Counsel
X.X. XXXXXXX WORLD SOLUTION
COMPANY, a Colorado corporation
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP/Gen. Counsel
The following party hereby acknowledges the foregoing Agreement and the
terms thereof:
KEYBANK NATIONAL ASSOCIATION,
individually and as agent
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
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