EXHIBIT 10.3
PHASES II/III
ASSIGNMENT AND ASSUMPTION OF SECURITY DOCUMENTS,
AMENDMENT TO MEMORANDUM OF LEASE AND AMENDMENT TO
MEMORANDUM OF GROUND LEASE
This Assignment and Assumption of Security Documents, Amendment to
Memorandum of Lease 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 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").
3. For purposes of this Agreement the term "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 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 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 (Phases II/III Memorandum of Ground Lease");
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(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 Xxxxxxx 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
Xxxxxxx 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 (collectively,
the "Phases II/III Memorandum of Lease");
(v) 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 Xxxxxxx
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 (collectively, the "Phases II/III
Deed of Trust");
(vi) 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. 9700159095; as amended and
restated by Xxxxxxx 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
(vii) 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
Xxxxxxx and Restated
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Subordination and Agreement Relative to Deed of Trust dated as
of March 15, 1998.
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 Phases II/III Ground Lease, the Phases II/III Master Lease, and the other
Phases II/III Financing Documents.
5. On this date, PeopleSoft has assumed all of JDE LLC's
obligations and liabilities under the Phases II/III Ground Lease, the Phases
II/III Master Lease, and the other Phases II/III 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
Phases II/III Financing Documents, including without
limitation, all of JDE LLC's rights and interests under the
Phases II/III Ground Lease and the Phases II/III Master Lease.
Notwithstanding anything to the contrary herein, JDE LLC shall
remain primarily liable under the Phases II/III 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 Phases II/III Financing
Documents, including without limitation, all liabilities and
obligations under the Phases II/III 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 II/III
Financing Documents, and 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 Phases II/III Deed of
Trust. PeopleSoft hereby ratifies and confirms such grant,
conveyance, transfer, delivery, assignment and setting over.
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(iv) As of the date of this Agreement, all references in the Phases
II/III 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 "Tenant," as set forth in the Phases II/III
Memorandum of Lease, shall mean PeopleSoft.
(vi) The term "Ground Landlord," as set forth in the Phases II/III
Memorandum of Ground Lease, shall mean PeopleSoft.
(vii) Except as herein affected, the Phases II/III 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
Xxxx Authorized
PEOPLESOFT, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Xxxx 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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