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EXHIBIT 10.4
PHASE IV
ASSIGNMENT AND ASSUMPTION OF SECURITY DOCUMENTS, AMENDMENT
TO MEMORANDUM OF LEASE (INCLUDING LEASE SUPPLEMENT NO. 1) AND
AMENDMENT TO MEMORANDUM OF GROUND LEASE
This Assignment and Assumption of Security Documents, Amendment to
Memorandum of Lease (including Lease Supplement No. 1) and Amendment to
Memorandum of Ground Lease ("Agreement") is made 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").
I Background
1. 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.
2. Selco and JDE LLC, as successor-in-interest to X.X. Xxxxxxx,
are parties to that certain Off-Balance Sheet Lease Financing for X.X. Xxxxxxx &
Company for the Acquisition and Construction of a Fourth Headquarters Building
in Denver, Colorado (original closing date of November 10, 1998) ("Phase IV
Financing").
3. For purposes of this Agreement the term "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 or extensions thereof;
including without limitation, all of the following documents, instruments or
agreements that were recorded in the land records of Denver County, Colorado:
(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
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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 (collectively, the "Phase IV Memorandum of Ground
Lease");
(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 (collectively, the "Phase
IV Memorandum of Lease");
(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 (collectively, the "Phase IV Deed of Trust");
(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) 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
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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
(viii) 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.
4. On this date, JDE LLC has assigned to PeopleSoft and
PeopleSoft has assumed from JDE LLC all of JDE LLC's rights and interest under
the Phase IV Ground Lease, the Phase IV Master Lease, and the other Phase IV
Financing Documents.
5. On this date, PeopleSoft has assumed, all of JDE LLC's
obligations and liabilities under the Phase IV Ground Lease, the Phase IV Master
Lease and the other Phase IV Financing Documents, while JDE LLC also remains
primarily liable thereunder as a principal and not as a surety.
6. Selco, JDE LLC, PeopleSoft desire to enter into this Agreement
for purposes of confirming, evidencing and effectuating such assignment and
assumption.
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:
(i) Assignment. JDE LLC hereby transfers, assigns and conveys to
PeopleSoft all of JDE LLC's rights and interest in and to the
Phase IV Financing Documents, including without limitation,
all of JDE LLC's rights and interests under the Phase IV
Ground Lease and the Phase IV Master Lease. Notwithstanding
anything to the contrary herein, JDE LLC shall remain
primarily liable under the Phase IV Financing Documents (as a
principal and not as a surety).
(ii) Assumption. PeopleSoft hereby accepts and assumes all such
rights and interests assigned to it above and also hereby
accepts and assumes all past, current liabilities and
obligations, and joins in all representations, warranties and
indemnities of JDE LLC, under the Phase IV Financing
Documents, including without limitation, all liabilities and
obligations under the Phase IV Deed of Trust. 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 Phase IV Financing Documents, and
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that JDE LLC and PeopleSoft each shall be primarily liable
thereunder as principals and not as sureties.
(iii) JDE LLC has granted, conveyed, transferred, delivered,
assigned and set over unto the Public Trustee in and for the
City and County of Denver, Colorado as Trustee for the benefit
of Selco, the property described in the Phase IV Deed of
Trust. PeopleSoft hereby ratifies and confirms such grant,
conveyance, transfer, delivery, assignment and setting over.
(iv) As of the date of this Agreement, all references in the Phase
IV 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 refer to PeopleSoft.
(v) The term "Lessee," as set forth in the Phase IV Memorandum of
Lease, shall mean PeopleSoft.
(vi) The term "Ground Landlord," as set forth in the Phase IV
Memorandum of Ground Lease, shall mean PeopleSoft.
(vii) Except as herein affected, the Phase IV Financing Documents
and all covenants, agreements, terms and conditions thereof
shall remain and continue in full force and effect and are
hereby in all respects ratified and confirmed.
(viii) The covenants, agreements, terms and conditions of this
Agreement shall bind and inure to the benefit to the parties
hereto and their respective permitted successors and assigns.
(ix) This Agreement shall not be changed orally, but only by
writing signed by the parties against whom enforcement thereof
is sought.
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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 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
[notary acknowledgements omitted]
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