exv10w2






EXHIBIT 10.2




EXECUTION VERSION


 





JDA Software Group, Inc.,




as Company




 






ESCROW AND SECURITY AGREEMENT




Dated as of December 10, 2009

 






 






U.S. Bank National Association,




as Escrow Agent

 






 





 









 








     THIS ESCROW AND SECURITY AGREEMENT is entered into on December 10, 2009, by and between U.S.
Bank National Association, a national banking association, in its capacities as escrow agent,
depositary bank and securities intermediary (collectively in such capacities, the “Escrow
Agent”), U.S. Bank National Association, a national banking association, in its capacity as
Trustee (the “Trustee”), and JDA Software Group, Inc., a Delaware corporation (the
“Company”).



RECITALS




     Pursuant to that certain indenture (the “Indenture”), dated as of December 10, 2009
among the Company, the Guarantors (as defined in the Purchase Agreement (defined below)) and the
Trustee, the Company will issue $275.0 million in aggregate principal amount of its 8.0% Senior
Notes due 2014 (the “Securities”). The Securities are being issued in a private placement
(the “Offering”) pursuant to that certain Purchase Agreement (the “Purchase
Agreement”), dated as of December 7, 2009, among the Company, the Guarantors, Goldman, Sachs &
Co. and Wells Fargo Securities, LLC as representatives of the several initial purchasers named
therein (together, the “Purchasers”). In connection with the private placement of the
Securities, a Preliminary Offering Circular dated November 30, 2009 (the “Preliminary Offering
Circular”), a Pricing Supplement dated December 7, 2009 (the “Supplement”) and an
Offering Circular dated December 7, 2009 (the “Offering Circular”) were prepared.
Capitalized terms that are used but not defined herein have the meanings assigned to them in the
Indenture.



     As described in the Offering Circular, net proceeds from the Offering will be used to fund a
portion of the consideration and related costs and expenses pursuant to an Agreement and Plan of
Merger (the “Merger Agreement”), dated as of November 4, 2009, among i2 Technologies, Inc .
(“i2”), Alpha Acquisition Corp. and the Company (the “Merger”), together with any
amendments, modifications, and waivers that are not, in the good faith determination of the Board
of Directors of the Company, individually or in the aggregate, materially adverse to the Holders of
the Notes. As of the closing date of the Offering, the Merger has not yet been consummated.



     The Company and the Escrow Agent hereby agree that, in consideration of the mutual promises
and covenants contained herein, the Escrow Agent will hold in escrow and will distribute Escrow
Property (as defined below) in accordance with and subject to this Agreement:



I. INSTRUCTIONS





	1.	 	Escrow Property





     The property and/or funds to be deposited with the Escrow Agent will be as follows:




	(a)	 	Concurrently with the execution and delivery hereof and the issuance of the Securities:






	 	(i)	 	the Purchasers will deposit with the Escrow Agent $266,717,000 by wire transfer
in immediately available funds, which amount represents the net proceeds from the
Offering pursuant to the Purchase Agreement; and
	 
	 	(ii)	 	the Company will deposit with the Escrow Agent $17,083,281.11 by wire transfer
in immediately available funds.





As a result of the simultaneous deposits made pursuant to clauses (i) and (ii) above, the aggregate
amount deposited with the Escrow Agent on the date hereof will be $283,800,281.11 (the “Initial
Deposit”), which amount is sufficient, in the opinion of the Company, to redeem in cash the
Securities, in whole and not in part, at a redemption price equal to 101% of the gross proceeds of
the Securities plus accrued and unpaid interest from December 10, 2009 to, but not including, May
4, 2010.



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	(b)	 	The Escrow Agent will accept the Initial Deposit and will hold such funds plus any interest
or dividends thereof in one or more separate identifiable accounts (each an “Escrow
Account”) for disbursement in accordance with the provisions hereof.






	(c)	 	Each Escrow Account will be under the control (within the meanings of Sections 8-106, 9-106
and 9-104 of the New York Uniform Commercial Code) of the Trustee and, notwithstanding any
other provision of this Agreement, the Escrow Agent will appropriately identify in its records
that the Trustee is the entitlement holder of the Escrow Account and will comply with all
entitlement orders and instructions given by the Trustee with respect to any Escrow Account or
other Escrow Property (as defined below) without further consent of the Company or any other
person.






	(d)	 	This Agreement is intended as a true escrow. Nevertheless, to the extent the Company retains
any interest in the Escrow Account or the Escrow Property, then as security for the punctual
payment when due of all amounts that may be payable from time to time under the Indenture and
the Securities, now or hereafter arising, the Company hereby pledges, assigns and grants to
the Trustee, for the benefit of the holders of the Securities, a continuing security interest
in, and a lien on, the Escrow Property. The Company represents and warrants that the security
interest of the Trustee will at all times that the Escrow Property is held by the Escrow Agent
(in its capacity as such) be valid, perfected and enforceable as a first priority security
interest by the Trustee against the Company and all third parties in accordance with the terms
of this Agreement.






	(e)	 	The Company agrees to take all steps reasonably requested by the Purchasers or the Trustee to
perfect the Trustee’s security interest in the Escrow Property and, without limiting the
generality of the foregoing, the Company hereby authorizes the Trustee to file one or more UCC
financing statements and continuation statements, if necessary, in such filing offices and
containing such descriptions of collateral as the Purchasers reasonably determine are
necessary or advisable in order to perfect the security interest granted herein.






	(f)	 	Upon the release of any Escrow Property pursuant to Section I.3 hereof, the security interest
of the Trustee for the benefit of the holders of the Securities will automatically terminate
without any further required action of the Company and the Escrow Property will be delivered
to the recipient free and clear of any and all liens, claims or encumbrances of any person,
including, without limitation, the Escrow Agent, the Trustee and the holders of the
Securities. The Trustee will take all steps necessary or advisable to terminate any financing
statements and will execute such other documents as
the Company may reasonably request to evidence or confirm the termination of the security
interest.





     The Initial Deposit, each Escrow Account and all funds, securities or other property now or
hereafter credited to an Escrow Account, all investments of any of the foregoing, plus all
interest, dividends and other distributions and payments on any of the foregoing (collectively the
“Distributions”) received by the Escrow Agent, less any property and/or funds distributed
or paid in accordance with Section I.3 of this Agreement, together with all rights of the Company
under this Agreement and all proceeds of any of the foregoing are collectively referred to herein
as “Escrow Property.”




	2.	 	Investment of Escrow Property





     Promptly after the Initial Deposit is made, the Company shall give the Escrow Agent written
directions to invest the Escrow Property without distinction between principal and income, in
Government Securities (including money market funds investing in Government Securities). The
Escrow Agent will credit all such investments and reinvestments to an Escrow Account and hereby
agrees to treat any such investment or reinvestment as a financial asset within the meaning of
Section 8-102(a)(9) of the New York Uniform Commercial Code.



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     “Government Securities” shall mean direct obligations of, or obligations guaranteed or
insured by, the United States of America (including and agency or instrumentality thereof); the
payment of which the full faith and credit of the United States of America is pledged.



     The Escrow Agent will have no liability for any loss arising from or related to any such
investment other than in accordance with Section II.4 herein.



     The Escrow Agent is hereby authorized to execute purchases and sales of permitted investments
through the facilities of its own trading or capital markets operations or those of any affiliated
entity.



     In the absence of written investment direction, the Escrow Agent shall hold funds received
hereunder uninvested.




	3.	 	Distribution of Escrow Property





     Subject to Section I.1(c), the Escrow Agent is directed to hold and distribute the Escrow
Property in the following manner:




	(a)	 	The Escrow Agent will only release the Escrow Property in the cases specifically provided for
in this Section I.3.






	(b)	 	Upon the satisfaction of the following conditions (which will be evidenced by an Officer’s
Certificate from the Company to the Trustee and the Escrow Agent substantially in the form
attached hereto as Exhibit A confirming that the these conditions have been met, the
Escrow Agent will release the Escrow Property to the Company:





          1. the Merger shall have been consummated in accordance with the Merger Agreement prior to, or
will be consummated immediately following, the release of the Escrow Property to the Company from
the Escrow Account;




          2. i2 and each other Domestic Subsidiary of the Company resulting from the Merger that is not
an Immaterial Subsidiary shall have executed, or will execute immediately following the Merger, a
supplemental indenture, whereby they have or will fully and unconditionally guarantee(d) the Notes;




          3. the Escrow Property will be applied substantially in the manner described under the caption
“Sources and Uses of Funds” in the Offering Circular, including without limitation, to pay the
consideration in connection with the Merger;




          4. no Event of Default (as defined in the Indenture) will have occurred and be continuing or
result therefrom; and




          5. the Trustee shall have received, or will receive immediately following the Merger, such
certificates and legal opinions as are required pursuant to the Indenture.




     The Officer’s Certificate shall designate the date on which the Company elects to receive
payment of the Escrow Property (the “Payment Date”); provided that if the Officer’s
Certificate from the Company is delivered to the Escrow Agent after 10:00 a.m. New York City time
on a Business Day, then the Payment Date shall be at least one Business Day after the date the
Officer’s Certificate is delivered to the Escrow Agent. All delivery of Escrow Property will be
subject to the Escrow Agent’s ability to liquidate the investments in which the Escrow Property is
invested as soon as possible upon receipt of such Officer’s Certificate.



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	(c)	 	If the Escrow Agent has not received an Officer’s Certificate from the Company certifying
that conditions contained in clause (b) have been satisfied on or prior to May 4, 2010 (the
“Deadline”), the Trustee shall notify the Escrow Agent that a Redemption Event (as
defined below) has occurred.
	 
	(d)	 	If the Escrow Agent receives a written notice from either the Trustee or the Company that:





      




	 	(i)	 	the principal amount of and accrued and unpaid interest on the Securities has
become immediately due and payable pursuant to Section 6.02 of the Indenture (an
“Acceleration Event”), or
	 
	 	(ii)	 	the Company is redeeming, including pursuant to the Special Mandatory
Redemption provisions contained in Section 3.08 of the Indenture, or repurchasing
Securities pursuant to the terms of the Indenture (a “Redemption Event”),






then the Escrow Agent will liquidate all Escrow Property then held by it, and the Escrow
Agent will release to the Trustee for payment to the holders of the Securities the amount of
Escrow Property sufficient to pay such accelerated, redeemed or repurchased principal
amount, as applicable, and interest, if any, thereon (A) in the case of an Acceleration
Event, within one Business Day after receipt of such written notice from the Trustee or (B)
in the case of a Redemption Event, not less than three Business Days after, but in any event
within five Business Days after receipt of such written notice. In the event of a release
under this clause (e), the Escrow Property will be applied, first, to amounts owing to the
Trustee and the Escrow Agent in respect of fees and expenses of the Trustee and the Escrow
Agent incurred in accordance with Section I.6 of this Agreement and second, to the Trustee
for payment to the holders of the Securities to the full extent of all obligations under the
Indenture and the Securities. Following such release and application, the Escrow Agent will
release all remaining Escrow Property, if any, as directed in the written instructions from
the Company.




	4.	 	Addresses






Notices, instructions and other communications will be sent as follows:



	 	 	 
	to Escrow Agent:

	 	U.S. Bank National Association
	 

	 	60 Livingston Avenue, EP-MN-WS3C
	 

	 	St. Paul, MN 55107
	 

	 	Attn.: Tom Maple
	 

	 	Telecopier: (651) 495-8096
	 
	 	 
	to Company:

	 	JDA Software Group, Inc.
	 

	 	14400 North 87th Street
	 

	 	Scottsdale, AZ 85260
	 

	 	Attention: General Counsel
	 

	 	Telecopier: (651) 495-8096
	 
	 	 
	with copies to
	 	 
	(which shall not
	 	 
	constitute notice):

	 	Cooley Godward Kronish LLP
	 

	 	101 California Street
	 

	 	5th Floor
	 

	 	San Francisco, CA 94111






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	 	Attention: Joseph Scherer and Gian Michele a Marca
	 

	 	Telecopier: (415) 693-2222
	 
	 	 
	 

	 	DLA Piper LLP
	 

	 	2525 East Camelback Road, Suite 1000
	 

	 	Phoenix, AZ 85016
	 

	 	Attention: Steven D. Pidgeon
	 

	 	Telecopier: (480) 606-5524
	 
	 	 
	To Purchasers:

	 	c/o Goldman, Sachs & Co.
	 

	 	85 Broad Street
	 

	 	New York, NY 10004
	 

	 	Attention: Registration Department
	 

	 	Telecopier: (212) 902-1000
	 
	 	 
	with a copy to:

	 	Latham & Watkins LLP
	 

	 	355 South Grand Ave.
	 

	 	Los Angeles, CA 90071
	 

	 	Attention: Steven B. Stokdyk
	 

	 	Telecopier: (213) 891-8763
	 
	 	 
	to the Trustee:

	 	U.S. Bank National Association
	 

	 	60 Livingston Avenue, EP-MN-WS3C
	 

	 	St. Paul, MN 55107
	 

	 	Attn.: Rick Prokosch
	 

	 	Telecopier: (651) 495-8097






     The Escrow Agent agrees to accept and act upon facsimile transmission of written instructions
and/or directions pursuant to this Agreement given by the Company or the Trustee, provided, however
that: (i) the Company, subsequent to such facsimile transmission of written instructions and/or
directions, shall provide the originally executed instructions and/or directions to the Escrow
Agent in a timely manner and (ii) such originally executed instructions and/or directions shall be
signed by an Authorized Officer of the Company or the Trustee, as applicable.




	5.	 	Distribution of Escrow Property





     Upon the release of any Escrow Property to the Company or the Purchasers pursuant to Section
I.3(b) hereof, such Escrow Property will be delivered to the recipient, free and clear of any and
all interests of the Escrow Agent, the Trustee and the holders of the Securities. Upon any release
of any Escrow Property to the Trustee for distribution to the holders of the Securities pursuant to
Section I.3(e), the Escrow Property so released will be delivered to the Trustee free and clear of
any and all claim or interest of the Company and the Escrow Agent. Upon the release of all the
Escrow Property in accordance with Section I.3 hereof, this Agreement will terminate.




	6.	 	Compensation






	(a)	 	At the time of execution of this Agreement, the Company will pay the Escrow Agent a one time
fee as agreed upon in the fee schedule between the Company and the Escrow Agent incorporated
herein as Schedule B.






	(b)	 	The Company will pay all activity charges as per the Escrow Agent’s current fee schedule as
provided to the Company on or prior to the date hereof.




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	(c)	 	The Company will be responsible for and will reimburse the Escrow Agent upon demand for all
reasonable and documented expenses and disbursements incurred or made by the Escrow Agent in
connection with this Agreement.





II. TERMS AND CONDITIONS




          1. Scope of Duties. The duties, responsibilities and obligations of the Escrow Agent
will be limited to those expressly set forth herein and no duties, responsibilities or obligations
will be inferred or implied. The Escrow Agent will not be subject to, nor required to
comply with, any other agreement to which the Company is a party, even though reference
thereto may be made herein, or to comply with any direction or instruction (other than those
contained herein or delivered in accordance with this Agreement) from the Company or any entity
acting on its behalf. The Escrow Agent will not be required to, and will not, expend or risk any
of its own funds or otherwise incur any financial liability in the performance of any of its duties
hereunder.




          2. Benefit of the Parties. This Agreement is for the exclusive benefit of the parties
hereto and their respective successors hereunder, and will not be deemed to give, either express or
implied, any legal or equitable right, remedy, or claim to any other entity or person whatsoever,
other than to the Company, the Purchasers and the Trustee to the extent set forth herein.




          3. Compliance with Judicial Orders. If at any time the Escrow Agent is served with
any judicial or administrative order, judgment, decree, writ or other form of judicial or
administrative process which in any way affects Escrow Property (including but not limited to
orders of attachment or garnishment or other forms of levies or injunctions or stays relating to
the transfer of Escrow Property), the Escrow Agent is authorized to comply therewith in any manner
as it or its legal counsel of its own choosing deems appropriate, and if the Escrow Agent complies
in good faith with any such judicial or administrative order, judgment, decree, writ or other form
of judicial or administrative process, the Escrow Agent will not be liable to any of the parties
hereto or to any other person or entity even though such order, judgment, decree, writ or process
may be subsequently modified or vacated or otherwise determined to have been without legal force or
effect.




          4. Escrow Agent.





     (a) The Escrow Agent will not be liable for any action taken or omitted or for any loss
or injury resulting from its actions or its performance or lack of performance of its duties
hereunder in the absence of gross negligence, willful misconduct or bad faith on its part.
In no event will the Escrow Agent be liable, directly or indirectly, (i) for acting in
accordance with or relying upon any instruction, notice, demand, certificate or document
from the Company or the Trustee or any entity acting on behalf thereof, (ii) for any
indirect, consequential, punitive or special loses or damages of any kind whatsoever
(including but not limited to lost profits), even if the Escrow Agent has been advised of
the possibility of such losses or damages and regardless of the form of action (but without
limiting the obligations and liabilities of the Escrow Agent by operation of the first
sentence of this Section II.4(a)), (iii) for the acts or omissions of its nominees,
correspondents, designees, subagents or subcustodians, so long as the same are selected with
due care, or (iv) for an amount in excess of the value of the Escrow Property.




     (b) The Escrow Agent may consult with legal counsel at the reasonable expense of the
Company as to any matter relating to this Agreement, and the Escrow Agent will not incur any
liability in acting in good faith in accordance with any advice from such counsel.




     (c) The Escrow Agent will not incur any liability for not performing any act or
fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence
beyond the



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control of the Escrow Agent (including but not limited to any act or
provision of any present or future law or regulation or governmental authority, any act of
God or war, or the unavailability of the Federal Reserve Bank wire or telex or other wire or
communication facility).



          5. Collection of Checks. Unless otherwise specifically set forth herein, the Escrow
Agent will proceed as soon as practicable to collect any checks or other collection items at any
time deposited hereunder. All such collections will be subject to the Escrow Agent’s usual
collection practices or terms regarding items received by the Escrow Agent for deposit or
collection. The Escrow Agent will not be required, or have any duty, to notify anyone of any
payment or maturity under the terms of any instrument deposited hereunder, nor to take any legal
action to enforce payment of any check, note or security deposited hereunder or to exercise any
right or privilege which may be afforded to the holder of any such security.




          6. Statements. The Escrow Agent will provide to the Company and the Trustee monthly
statements identifying transactions, transfers or holdings of Escrow Property, and each such
statement will be deemed to be correct and final upon receipt thereof by the Company unless the
Escrow Agent is notified in writing to the contrary. Although each of the parties recognizes that
it may obtain a broker confirmation or written statement containing comparable information at no
additional cost, the parties hereto hereby agree that confirmation of permitted investments are not
required to be issued by the Escrow Agent for each month in which a monthly statement is rendered.




          7. Disclaimer. The Escrow Agent will not be responsible in any respect for the form,
execution, validity, value or genuineness of documents or securities deposited hereunder, or for
any description therein, or for the identity, authority or rights of persons executing or
delivering or purporting to execute or deliver any such document, security or endorsement.




          8. Notices. Notices, instructions or other communications will be in writing and will
be given to the address set forth in the “Addresses” provision herein (or to such other address as
may be substituted therefor by written notification to the Escrow Agent, the Company or the
Purchasers). Notices to the Escrow Agent will be deemed to be given when actually received by the
Escrow Agent’s Corporate Trust Services division. The Escrow Agent is authorized to comply with
and rely upon any notices, instructions or other communications believed by it to have been sent or
given by the Company or by a person or persons authorized by the Company. Whenever under the terms
hereof the time for giving a notice or performing an act falls upon a Saturday, Sunday, or banking
holiday, such time will be extended to the next day on which the Escrow Agent is open for business.
Attached as Schedule A hereto is a list of those persons initially entitled to give notices,
instructions and other communications to the Escrow Agent on behalf of the Company and the Trustee.
Schedule A may be amended from time to time by written notice from the Company or the Trustee
(with respect to their own information only) to the Escrow Agent.




          9. Indemnity. The Company will be liable for and will reimburse and indemnify the
Escrow Agent and hold the Escrow Agent harmless from and against any and all claims, losses,
liabilities, costs, damages or expenses (including reasonable attorneys’ fees and expenses)
(collectively, “Losses”) arising from or in connection with or related to this Agreement or
being Escrow Agent hereunder (including but not limited to Losses incurred by the
Escrow Agent in connection with its successful defense, of any claim of gross negligence,
willful misconduct or bad faith on its part); provided, however, that nothing contained herein will
require the Escrow Agent to be indemnified for Losses caused by its gross negligence, willful
misconduct or bad faith.



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          10. Resignation or Removal of Escrow Agent.





     (a) The Company may, with the consent of Goldman, Sachs & Co. (which consent shall not
unreasonably be withheld), remove the Escrow Agent at any time by giving to the Escrow Agent
fifteen (15) calendar days’ prior notice in writing signed by the Company. The Escrow Agent
may resign at any time by giving to the Company fifteen (15) calendar days’ prior written
notice thereof.




     (b) Within ten (10) calendar days after giving the foregoing notice of removal to the
Escrow Agent or receiving the foregoing notice of resignation from the Escrow Agent, the
Company and the Trustee will jointly agree on and appoint a successor Escrow Agent. The
Company will cause any successor Escrow Agent to assume the obligations of the Escrow Agent
hereunder or to enter into such other escrow and security agreement as may be acceptable to
the Trustee in its sole discretion. If a successor Escrow Agent has not accepted such
appointment by the end of such 10-day period or such successor Escrow Agent has not become
so bound, the Escrow Agent may, in its sole discretion, deliver the Escrow Property to the
Trustee at the address provided herein or may apply to a court of competent jurisdiction for
the appointment of a successor Escrow Agent or for other appropriate relief. The costs and
expenses (including reasonable attorneys’ fees and expenses) incurred by the Escrow Agent in
connection with such a removal (but not a resignation) will be paid by, and be deemed to be
solely an obligation of, the Company.




     (c) Upon receipt of the written acceptance of its appointment by the successor Escrow
Agent, the Escrow Agent will either deliver the Escrow Property then held hereunder to the
successor Escrow Agent, pursuant to this Agreement, less the Escrow Agent’s fees, costs and
expenses or other obligations owed to the Escrow Agent, or hold such Escrow Property (or any
portion thereof), pending distribution, until all such fees, costs and expenses or other
obligations are paid.




     (d) Upon delivery of the Escrow Property to successor Escrow Agent free and clear of
any lien, claim, encumbrance or other interest of the Escrow Agent, the Escrow Agent will
have no further duties, responsibilities or obligations hereunder.




     (e) The Escrow Agent will execute documents as the Company may reasonably request to
evidence or confirm the foregoing.




     11. Escrow Agent Rights.




     (a) In the event of any ambiguity or uncertainty hereunder or in any notice,
instruction or other communication received by the Escrow Agent hereunder, the Escrow Agent
may, in its sole discretion, refrain from taking any action other than retain possession of
the Escrow Property, unless the Escrow Agent receives written instructions,
signed by the Company, which eliminates such ambiguity or uncertainty; provided,
however, that the Escrow Agent shall promptly notify the Company of any such ambiguity or
uncertainty.




     (b) In the event of any dispute between or conflicting claims by or among the Company
and/or any other person or entity with respect to any Escrow Property, the Escrow Agent will
be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or
instructions with respect to such Escrow Property so long as such dispute or conflict shall
continue, and the Escrow Agent will not be or become liable in any way to the Company for
failure or refusal to comply with such conflicting claims, demands or instructions. The
Escrow Agent will be entitled to refuse to act until, in its sole discretion, either (i)
such conflicting or



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adverse claims or demands will have been determined by a final order,
judgment or decree of a court of competent jurisdiction, which order, judgment or decree is
not subject to appeal, or settled by agreement between the conflicting parties as evidenced
in a writing satisfactory to the Escrow Agent or (ii) the Escrow Agent will have received
security or an indemnity satisfactory to it sufficient to hold it harmless from and against
any and all Losses which it may incur by reason of so acting. The Escrow Agent may, in
addition, elect, in its sole discretion, to commence an interpleader action or seek other
judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and
expenses (including reasonable attorneys’ fees and expenses) incurred in connection with
such proceeding will be paid by, and will be solely an obligation of, the Company.



          12. Governing Law. This Agreement will be interpreted, construed, enforced and
administered in accordance with the internal substantive laws (and not the choice of law rules
other than Section 5-1401 of the New York General Obligations Law) of the State of New York.
Jurisdiction for purposes of Sections 8-110 and 9-304 of the New York Uniform Commercial Code for
each party hereto will be the State of New York. Each party hereto hereby submits to the personal
jurisdiction of, and each agrees that all proceedings relating hereto will be brought in courts
located within, the City and State of New York. Each party hereto hereby waives the right to trial
by jury in any such proceedings. Each party hereto waives personal service of process and consents
to service of process by certified or registered mail, return receipt requested, directed to it at
the address last specified for notices hereunder, and such service will be deemed completed ten
(10) calendar days after the same is so mailed.




          13. Amendment. Except as otherwise permitted herein, this Escrow Agreement may be
modified only by a written amendment signed by all the parties hereto, and no waiver of any
provision hereof will be effective unless expressed in a writing signed by the party to be charged.




          14. Rights and Remedies. The rights and remedies conferred upon the parties hereto
will be cumulative, and the exercise or waiver of any such right or remedy will not preclude or
inhibit the exercise of any additional rights or remedies. The waiver of any right or remedy
hereunder will not preclude the subsequent exercise of such right or remedy.




          15. Representations and Warranties. The Company hereby represents and warrants (a)
that this Agreement has been duly authorized, executed and delivered on its behalf and constitutes
its valid and binding obligation, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and (b) that the execution, delivery and
performance of this Agreement by Company do not and will not violate any applicable law or
regulation. The Company represents and warrants that it is duly formed and validly existing as a
corporation under the laws of the state of Delaware and is not organized under the laws of any
other jurisdiction and will not change its jurisdiction of organization during the term of this
Agreement without giving the Trustee 30 days’ prior written notice thereof.




          16. Severability. The invalidity, illegality or unenforceability of any provision of
this Agreement will in no way affect the validity, legality or enforceability of any other
provision; and if any provision is held to be enforceable as a matter of law, the other provisions
will not be affected thereby and will remain in full force and effect.




          17. Integration. This Agreement will constitute the entire agreement of the parties
with respect to the subject matter and supersedes all prior oral or written agreements in regard
thereto.




          18. Termination. This Agreement will terminate upon the distribution of all Escrow
Property from the Escrow Account. The provisions of these Terms and Conditions and Sections
I.1(f) and I.6 will survive termination of this Agreement and/or the resignation or removal of the
Escrow Agent.




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          19. Advertising. No printed or other material in any language, including
prospectuses, notices, reports, and promotional material which mentions “U.S. Bank National
Association” by name in its capacity as Escrow Agent or the rights, powers, or duties of the Escrow
Agent under this Agreement will be issued by any other parties hereto, or on such party’s behalf,
without the prior written consent of the Escrow Agent. The Escrow Agent consents to the use of its
name in the Preliminary Offering Circular, the Supplement and the Offering Circular, as the same
may be amended from time to time and in any Securities and Exchange Commission filings.




          20. Headings. The headings contained in this Agreement are for convenience of
reference only and will have no effect on the interpretation or operation hereof.




          21. Counterparts. This Agreement may be executed by each of the parties hereto in any
number of counterparts, each of which counterpart, when so executed and delivered, will be deemed
to be an original and all such counterparts will together constitute one and the same agreement.




          22. Liability for Taxes. Except as otherwise set forth herein, the Escrow Agent does
not have any interest in the Escrow Property deposited hereunder but is serving as escrow holder
only and having only possession thereof. The Company will pay or reimburse the Escrow Agent upon
request for any transfer taxes or other taxes relating to the Escrow Property incurred in
connection herewith and will indemnify and hold harmless the Escrow Agent any amounts that it is
obligated to pay in the way of such taxes. Any payments of income from this Escrow Account will be
subject to withholding regulations then in force with respect to United States taxes. The parties
hereto will provide the Escrow Agent with appropriate W-9 forms for tax I.D. number certifications,
or W-8 forms for non-resident alien certifications, as requested. It is
understood that the Escrow Agent will be responsible for income reporting only with respect to
income earned on investment of funds which are a part of the Escrow Property and is not responsible
for any other reporting. This paragraph and paragraph (9) will survive notwithstanding any
termination of this Agreement or the resignation or removal of the Escrow Agent.




          23. Successor Escrow Agent Entity. Any banking association or corporation into which
the Escrow Agent may be merged, converted or with which the Escrow Agent may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent
shall be a party, or any banking association or corporation to which all or substantially all of
the corporate trust or escrow business of the Escrow Agent shall be sold or otherwise transferred,
shall succeed to all the Escrow Agent’s rights, obligations and immunities hereunder without the
execution or filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.




          24. Assignment of Interests. No assignment of the interest of any of the parties
hereto shall be binding upon the Escrow Agent unless and until written notice of such assignment
shall be filed with and acknowledged by the Escrow Agent. Any corporation or other company into
which Escrow Agent may be merged or converted or with which it may be consolidated, or any
corporation or other company resulting from any merger, conversion or consolidation to which Escrow
Agent shall be a party, or any corporation or other company succeeding to the business of Escrow
Agent shall be the successor of Escrow Agent hereunder without the execution or filing of any paper
with any party hereto or any further act on the party of any of the parties hereto except where an
instrument of transfer or assignment is required by law to effect such succession, anything herein
to the contrary notwithstanding.




          25. Force Majeure. Notwithstanding any other provision of this Agreement, the Escrow
Agent shall not be obligated to perform any obligation hereunder and shall not incur any liability
for the nonperformance or breach of any obligation hereunder to the extent that the Escrow Agent is
delayed in performing, unable to perform or breaches such obligation arising from acts of God, war,




10









 







terrorism, fire, floods, strikes, electrical outages, equipment or transmission failures, or other
causes reasonably beyond its control.




          26. Funds Transfer Agreement. In the event funds transfer instructions are given
(other than in writing at the time of the execution of the Agreement), whether in writing, by
telecopier or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions
by telephone call-back to the person or persons designated on Schedule A hereto, and the
Escrow Agent may rely upon the confirmations of anyone purporting to be the person or persons so
designated. The persons and telephone numbers for call-backs may be changed only in writing
actually received and acknowledged by the Escrow Agent. The parties to the Agreement acknowledge
that such security procedure is commercially reasonable. It is understood that the Escrow Agent
and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or
similar identifying number provided by any party hereto to identify (i) the beneficiary, (ii) the
beneficiary’s bank or (iii) an intermediary bank. The Escrow Agent may apply funds for any payment
order it executes using any such identifying number, even where its use may result in a person
other than the beneficiary being paid, or the transfer of funds to a bank other than the
beneficiary’s bank, or an intermediary bank.




          27. Identifying Information. To help the government fight the funding of terrorism
and money laundering activities, Federal law requires all financial institutions to obtain, verify,
and record information that identifies each person who opens an account. For a non-individual
person such as a business entity, a charity, a trust, or other legal entity, the Escrow Agent
requires documentation to verify its formation and existence as a legal entity. The Escrow Agent
may ask to see financial statements, licenses, identification and authorization documents from
individuals claiming authority to represent the entity or other relevant documentation. The
Company acknowledges that a portion of the identifying information set forth herein is being
requested by the Escrow Agent in connection with the USA Patriot Act, Pub.L.107-56 (the
“Act”), and the Company agrees to provide any additional information requested by the
Escrow Agent in connection with the Act or any similar legislation or regulation to which Escrow
Agent is subject, in a timely manner.




[signature pages to follow]




11









 





     IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed by a duly
authorized officer as of the day and year first written above.



	 	 	 	 	 
	 	JDA
Software Group, Inc.,
 as Company

 	 
	 	By:  	/s/ Hamish Brewer
 	 
	 	 	Name:  	Hamish Brewer 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	U.S.
Bank National Association,
 as Escrow Agent

 	 
	 	By:  	/s/ Thomas S. Maple III
 	 
	 	 	Name:  	Thomas S. Maple III 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	Accepted and Acknowledged By:

U.S. Bank National
Association,
 as Trustee

 	 
	 	By:  	/s/ Richard Prokosch
 	 
	 	 	Name:  	Richard Prokosch 	 
	 	 	Title:  	Vice President 	 
	 



[JDA Software Group, Inc. Escrow and Security Agreement Signature Page]




 









 





EXHIBIT A




JDA SOFTWARE GROUP, INC.




Officer’s Certificate




          This certificate is being delivered pursuant to Section I.3(b) of the Escrow and Security
Agreement dated as of December 10, 2009 (the “Escrow and Security Agreement”), among JDA Software
Group, Inc., a Delaware corporation (the “Company”), U.S. Bank National Association, as escrow
agent (the “Escrow Agent”) and U.S. Bank National Association, as trustee (the “Trustee”).
Capitalized terms used but not defined herein have the respective meanings specified in the Escrow
and Security Agreement.





               The Company hereby certifies through the undersigned officer that:



     1. the Merger shall have been consummated in accordance with the Merger Agreement prior to, or
will be consummated immediately following, the release of the Escrow Property to the Company from
the Escrow Account;



     2. i2 and each other Domestic Subsidiary of the Company resulting from the Merger that is not
an Immaterial Subsidiary shall have executed, or will execute immediately following the Merger, a
supplemental indenture, whereby they have or shall have fully and unconditionally guaranteed the
Notes;



     3. the Escrow Property will be applied substantially in the manner described under the caption
“Sources and Uses of Funds” in the Offering Circular, including without limitation, to pay the
consideration in connection with the Merger;



     4. no Event of Default (as defined in the Indenture) will have occurred and be continuing or
result therefrom; and



     5. the Trustee shall have received such certificates and legal opinions as are required
pursuant to the Indenture.



     Subject to Section I.3(b) of the Escrow and Security Agreement, the Company hereby designates
the following Business Day as the Payment Date: [                     ], 20[   ].



[signature page to follow]




 









 





     IN WITNESS WHEREOF, the Company, through the undersigned officer, has signed this Certificate
this ___day of ______.



	 	 	 	 	 
	 	JDA Software Group, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: