EXHIBIT 10.2
PHASE I
ASSIGNMENT AND ASSUMPTION OF SECURITY DOCUMENTS AND
AMENDMENT TO MEMORANDUM OF LEASE (INCLUDING
LEASE SUPPLEMENT NO. 1)
This Assignment and Assumption of Security Documents and Amendment to
Memorandum of Lease (including Lease Supplement No. 1) ("Agreement") is made as
of the 30th day of September, 2003 by and among ▇.▇. ▇▇▇▇▇▇▇ & 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 ▇.▇. ▇▇▇▇▇▇▇ & Company, a Delaware corporation
("▇.▇. ▇▇▇▇▇▇▇"), with ▇.▇. ▇▇▇▇▇▇▇ being the surviving entity, and thereafter,
▇.▇. ▇▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇▇,
are parties to that certain Off-Balance Sheet Lease Financing for ▇.▇. ▇▇▇▇▇▇▇ &
Company for the acquisition of a First Headquarters Building in Denver, Colorado
(original closing date of August 26, 1998) ("Phase I Financing").
3. For purposes of this Agreement the term "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 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) 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,
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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 (collectively,
the "Phase I Memorandum of Lease");
(iii) Lessee Collateral Assignment and Security Agreement in Respect
of Contracts, Licenses and Permits dated as of August 26, 1998
from JDE 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; and
(iv) 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.
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 I Master Lease, and the other Phase I Financing Documents.
5. On this date, PeopleSoft has assumed all of JDE LLC's
obligations and liabilities under the Phase I Master Lease and the other Phase I
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.
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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 I Financing Documents, including without limitation, all
of JDE LLC's rights and interests under the Phase I Master
Lease. Notwithstanding anything to the contrary herein, JDE
LLC shall remain primarily liable under the Phase I 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 I Financing Documents.
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 I
Financing Documents, and that JDE LLC and PeopleSoft each
shall be primarily liable thereunder as principals and not as
sureties.
(iii) As of the date of this Agreement, all references in the Phase
I Financing Documents to ▇.▇. ▇▇▇▇▇▇▇ or JDE LLC, or other
terms used therein which refer to ▇.▇. ▇▇▇▇▇▇▇ or JDE LLC,
shall be deemed to mean and refer to PeopleSoft.
(iv) The term "Lessee," as set forth in the Phase I Memorandum of
Lease, shall mean PeopleSoft.
(v) Except as herein affected, the Phase I 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.
(vi) 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.
(vii) 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.
▇.▇. ▇▇▇▇▇▇▇ & COMPANY, LLC, a
Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ Authorized
PEOPLESOFT, INC., a Delaware
corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ Authorized
SELCO SERVICE CORPORATION, an
Ohio corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
[notary acknowledgements omitted]
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