EXHIBIT 10.2
FIRST AMENDMENT
THIS FIRST AMENDMENT (the "Amendment") is made and entered into as
of the 5th day of November, 1999, by and between EOP-BUCKHEAD, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord"), and VIEWLOCITY, INC., A
DELAWARE CORPORATION ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain lease dated
concurrently as of the date hereof (the "Lease") for space currently
containing approximately 23,827 rentable square feet (the "Premises")
described as Suite No. 1700 on the 17th floor of the building commonly
known as Prominence in Buckhead and the address of which is ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Building").
B. Pursuant to the Lease, Tenant was required to obtain a Letter of Credit
in the amount of $1,212,468.06 that would (i) automatically renew for
one year periods until 60 days after the Termination Date of the Lease
and (i) reduce upon each anniversary of the initial expiration date of
the Letter of Credit, as more fully described in the Lease, and a copy
of which intended Letter of Credit is attached as Exhibit F of the
Lease. At this time, Tenant is only able to obtain a Letter of Credit
in the amount of $1,212,468.06, good for one year and without automatic
renewals (the "Initial Letter of Credit"). However, Tenant intends to
replace the Initial Letter of Credit with a Letter of Credit in the
form required by the Lease prior to expiration of the Initial Letter of
Credit.
C. Tenant and Landlord mutually desire that the Lease be amended on and
subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. AMENDMENT. Landlord and Tenant agree that the Lease shall be
amended in accordance with the following terms and conditions:
A. Effective as of the date of the Lease, Landlord and Tenant
agree that, notwithstanding anything to the contrary
contained in the Lease, the Letter of Credit to be
delivered by Tenant as the initial Letter of Credit
required under the Lease shall be in the form of the Letter
of Credit attached hereto as EXHIBIT A (the "Initial Letter
of Credit"). However, Landlord is entitled to, and Tenant
agrees to provide, Landlord with a replacement Letter of
Credit substantially in the form attached hereto as EXHIBIT
B (the "Replacement Letter of Credit"). If Tenant fails to
deliver the Replacement Letter of Credit to Landlord, in
form satisfactory to Landlord, on or before 60 days prior
to the expiration date of the Initial Letter of Credit,
then it shall be deemed a default of Tenant under the Lease
and Landlord, as its sole remedy, may immediately draw upon
the Initial Letter of Credit in its entirety, without
notice to Tenant, and apply and/or hold the proceeds
thereof as a Security Deposit in accordance with Section VI
of the Lease.
II. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There
have been no additional oral or written representations or
agreements. Except as herein modified or amended, the
provisions, conditions and terms of the Lease shall remain
unchanged and in full force and effect. In the case of any
inconsistency between the provisions of the Lease and this
Amendment, the provisions of this Amendment shall govern and
control.
B. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for
such an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same
to Tenant.
C. The capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease to the extent that
such capitalized terms are defined therein and not redefined
in this Amendment.
D. Tenant hereby represents to Landlord that Tenant has dealt
with no broker in connection with this Amendment. Tenant
agrees to indemnify and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors,
employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively,
the "Landlord Related Parties") harmless from all claims of
any brokers claiming to have represented Tenant in
connection with this Amendment. Landlord hereby represents
to Tenant that Landlord has dealt with no broker in
connection with this Amendment. Landlord agrees to
indemnify and hold Tenant, its members, principals,
beneficiaries, partners, officers, directors, employees,
and agents, and the respective principals and members of
any such agents (collectively, the "Tenant Related
Parties") harmless from all claims of any brokers claiming
to have represented Landlord in connection with this
Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
EOP-BUCKHEAD, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its
sole member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
TENANT:
VIEWLOCITY, INC., A DELAWARE CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
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EXHIBIT A
ProForma of Initial Letter of Credit
APPLICANT: VIEWLOCITY , INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BENEFICIARY: EOP - BUCKHEAD, L.L.C.
C/O EQUITY OFFICE PROPERTIES TRUST
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: BUILDING MANAGER
AMOUNT: USD1,212,468.06
EXPIRY DATE AND PLACE FOR PRESENTATION OF DOCUMENTS: OCTOBER 27, 2000
IMPERIAL BANK INTERNATIONAL DIVISION, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇.,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CREDIT IS AVAILABLE WITH IMPERIAL BANK INTERNATIONAL DIVISION AGAINST PAYMENT
OF DRAFTS DRAWN AT SIGHT ON IMPERIAL BANK INTERNATIONAL DIVISION, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DOCUMENTS REQUIRED:
1. THE ORIGINAL OF THIS IRREVOCABLE STANDBY LETTER OF CREDIT AND AMENDMENT(S)
IF ANY.
2. BENEFICIARY'S STATEMENT PURPORTEDLY SIGNED BY AN AUTHORIZED OFFICER
CERTIFYING THAT THIS DRAW IN THE AMOUNT OF [INSERT AMOUNT] UNDER IRREVOCABLE
STANDBY LETTER OF CREDIT NO. [INSERT L/C NO.] REPRESENTS FUNDS DUE AND OWING
TO EOP-BUCKHEAD, L.L.C. AS A RESULT OF VIEWLOCITY, INC.'S FAILURE TO COMPLY
WITH ONE OR MORE OF THE TERMS OF THAT CERTAIN LEASE BY AND BETWEEN
EOP-BUCKHEAD, L.L.C., AS LANDLORD, AND VIEWLOCITY, INC., AS TENANT.
SPECIAL CONDITIONS:
ALL INFORMATION REQUIRED UNDER DOCUMENT REQUIREMENT NO. 2 WHETHER INDICATED
BY BLANKS, BRACKETS OR OTHERWISE, MUST BE COMPLETED AT THE TIME OF DRAWING.
ALL SIGNATURES MUST BE MANUALLY EXECUTED ORIGINALS.
PARTIAL DRAWINGS MAY BE MADE UNDER THIS LETTER OF CREDIT, PROVIDED, HOWEVER,
THAT EACH SUCH DEMAND THAT IS PAID BY US SHALL REDUCE THE AMOUNT AVAILABLE
UNDER THIS LETTER OF CREDIT.
THIS LETTER OF CREDIT IS TRANSFERABLE IN WHOLE ONLY. YOU MAY TRANSFER THIS
LETTER OF CREDIT TO YOUR TRANSFEREE OR SUCCESSOR UPON SATISFACTORY DELIVERY
AND PRESENTATION TO THE ISSUING BANK OF (1) THE ORIGINAL STANDBY L/C AND
AMENDMENTS, IF ANY, FOR PROPER ENDORSEMENT (2) A REQUEST FOR TRANSFER ON THE
ISSUER'S USUAL TRANSFER FORM (3) VERIFICATION OF SIGNATURE AND AUTHORITY ON
SUCH TRANSFER FORM SIGNING FOR THE BENEFICIARY (4) PAYMENT OF A TRANSFER FEE,
OUR CURRENT STANDARD FEE IS 1/4%, MINIMUM USD150.00 AND (5) ANY OTHER
REQUIREMENTS RELATIVE TO THE UCP 500 AND U.S. GOVERNMENT REGULATIONS.
ALL DRAFTS AND DOCUMENTS REQUIRED UNDER THIS LETTER OF CREDIT MUST BE MARKED:
"DRAWN UNDER IMPERIAL BANK LETTER OF CREDIT NO. [INSERT L/C NO.]"
ALL COMMUNICATIONS TO IMPERIAL BANK WITH RESPECT TO THIS IRREVOCABLE STANDBY
LETTER OF CREDIT MUST BE ADDRESSED TO OUR OFFICE LOCATED AT ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, TO THE ATTENTION OF THE
INTERNATIONAL DIVISION, STANDBY L/C DEPT.
ALL DOCUMENTS ARE TO BE DISPATCHED IN ONE LOT BY COURIER SERVICE TO IMPERIAL
BANK INTERNATIONAL DIVISION, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇, TO THE ATTENTION OF THE INTERNATIONAL DIVISION, STANDBY L/C
DEPT.
THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING AND
SUCH UNDERTAKING SHALL NOT BE IN ANY WAY MODIFIED, AMENDED OR AMPLIFIED BY
REFERENCE TO ANY DOCUMENT, INSTRUMENT OR AGREEMENT REFERRED TO HEREIN OR IN
WHICH THIS LETTER OF CREDIT IS REFERRED TO OR TO WHICH THIS LETTER OF CREDIT
RELATES, AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY
REFERENCE ANY DOCUMENT, INSTRUMENT OR AGREEMENT.
WE HEREBY ENGAGE WITH YOU THAT ALL DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH
THE TERMS OF THIS CREDIT WILL BE DULY HONORED IF DRAWN AND PRESENTED FOR
PAYMENT AT THIS OFFICE ON OR BEFORE THE EXPIRATION DATE OF THIS CREDIT.
EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATED, THIS CREDIT IS SUBJECT TO THE
"UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS" (1993 REVISION)
INTERNATIONAL CHAMBER OF COMMERCE (PUBLICATION NO. 500).
EXHIBIT B
ProForma Replacement Letter of Credit
APPLICANT: VIEWLOCITY , INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BENEFICIARY: EOP - BUCKHEAD, L.L.C.
C/O EQUITY OFFICE PROPERTIES TRUST
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: BUILDING MANAGER
AMOUNT: USD 1,212,468.06
EXPIRY DATE AND PLACE FOR PRESENTATION OF DOCUMENTS: December 31, 2001, at
[INSERT NAME AND ADDRESS OF ISSUING BANK]
CREDIT IS AVAILABLE WITH [INSERT NAME OF ISSUING BANK] AGAINST PAYMENT OF
DRAFTS DRAWN AT SIGHT ON [INSERT NAME AND ADDRESS OF ISSUING BANK]
DOCUMENTS REQUIRED:
1. THE ORIGINAL OF THIS IRREVOCABLE STANDBY LETTER OF CREDIT AND AMENDMENT(S)
IF ANY.
2. BENEFICIARY'S STATEMENT PURPORTEDLY SIGNED BY AN AUTHORIZED OFFICER
CERTIFYING THAT THIS DRAW IN THE AMOUNT OF [INSERT AMOUNT] UNDER IRREVOCABLE
STANDBY LETTER OF CREDIT NO. [INSERT L/C NO.] REPRESENTS FUNDS DUE AND OWING
TO EOP-BUCKHEAD, L.L.C. AS A RESULT OF VIEWLOCITY, INC.'S FAILURE TO COMPLY
WITH ONE OR MORE OF THE TERMS OF THAT CERTAIN LEASE BY AND BETWEEN
EOP-BUCKHEAD, L.L.C., AS LANDLORD, AND VIEWLOCITY, INC., AS TENANT.
SPECIAL CONDITIONS:
ALL INFORMATION REQUIRED UNDER DOCUMENT REQUIREMENT NO. 2 WHETHER INDICATED
BY BLANKS, BRACKETS OR OTHERWISE, MUST BE COMPLETED AT THE TIME OF DRAWING.
ALL SIGNATURES MUST BE MANUALLY EXECUTED ORIGINALS.
PARTIAL DRAWINGS MAY BE MADE UNDER THIS LETTER OF CREDIT, PROVIDED, HOWEVER,
THAT EACH SUCH DEMAND THAT IS PAID BY US SHALL REDUCE THE AMOUNT AVAILABLE
UNDER THIS LETTER OF CREDIT.
IT IS A CONDITION OF THIS STANDBY LETTER OF CREDIT THAT IT SHALL BE DEEMED
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ONE YEAR PERIODS FROM THE
PRESENT EXPIRATION DATE HEREOF, UNLESS SIXTY (60) DAYS PRIOR TO ANY SUCH
DATE, WE SHALL NOTIFY YOU IN WRITING BY CERTIFIED MAIL OR COURIER SERVICE AT
THE ABOVE LISTED ADDRESS THAT WE ELECT NOT TO CONSIDER THIS IRREVOCABLE
LETTER OF CREDIT RENEWED FOR ANY SUCH ADDITIONAL PERIOD. A COPY OF ANY SUCH
NOTICE SHALL ALSO BE SENT TO: EQUITY OFFICE PROPERTIES TRUST, ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ATTN: TREASURER. UPON RECEIPT
BY YOU OF SUCH NOTICE, YOU MAY DRAW HEREUNDER BY MEANS OF YOUR DRAFT(S) ON US
AT SIGHT ACCOMPANIED BY YOUR ORIGINAL SIGNED STATEMENT WORDED AS FOLLOWS:
[BENEFICIARY] HAS RECEIVED NOTICE FROM [INSERT NAME OF ISSUING BANK] THAT THE
EXPIRATION DATE OF LETTER OF CREDIT NO. [INSERT L/C NO.] WILL NOT BE EXTENDED
FOR AN ADDITIONAL PERIOD. AS OF THE DATE OF THIS DRAWING, [BENEFICIARY] HAS
NOT RECEIVED A SUBSTITUTE LETTER OF CREDIT OR OTHER INSTRUMENT ACCEPTABLE TO
[BENEFICIARY] AS SUBSTITUTE FOR [INSERT NAME OF ISSUING BANK] LETTER OF
CREDIT NO. [INSERT L/C NO.] THE PROCEEDS OF THIS DRAWING WILL BE APPLIED TO
SATISFY ANY CLAIMS, INTEREST AND CHARGES OUTSTANDING RELATIVE TO THE
OBLIGATIONS DUE FROM VIEWLOCITY, INC. OR OTHERWISE HELD AS A SECURITY DEPOSIT
PURSUANT TO THE LEASE.
NOTWITHSTANDING THE ABOVE, THE FINAL EXPIRATION DATE SHALL BE DECEMBER 31,
2009.
THIS IRREVOCABLE STANDBY LETTER OF CREDIT WILL BE AUTOMATICALLY REDUCED TO
SPECIFIC AMOUNTS OUTLINED AS FOLLOWS, PROVIDING A DRAWING OR DRAWINGS DID NOT
TAKE PLACE IN ACCORDANCE WITH THE TERMS OF THE LETTER OF CREDIT AND THE
BALANCE OUTSTANDING IS AVAILABLE UNDER THIS LETTER OF CREDIT TO CAUSE SUCH
REDUCTION(S) TO OCCUR, UNLESS BENEFICIARY HAS DELIVERED TO ISSUER A STATEMENT
PURPORTEDLY SIGNED BY AN AUTHORIZED PARTY OF BENEFICIARY CERTIFYING THAT
THERE IS A DEFAULT UNDER THE LEASE.
DATE L/C AMOUNT
OCTOBER 15, 2002 USD969,974.45
OCTOBER 15, 2003 USD727,480.84
OCTOBER 15, 2004 USD484,987.23
OCTOBER 15, 2005 USD242,493.62
OCTOBER 15, 2006 USD10.00
THIS LETTER OF CREDIT IS TRANSFERABLE IN WHOLE ONLY. YOU MAY TRANSFER THIS
LETTER OF CREDIT TO YOUR TRANSFEREE OR SUCCESSOR UPON SATISFACTORY DELIVERY
AND PRESENTATION TO THE ISSUING BANK OF (1) THE ORIGINAL STANDBY L/C AND
AMENDMENTS, IF ANY, FOR PROPER ENDORSEMENT (2) A REQUEST FOR TRANSFER ON THE
ISSUER'S USUAL TRANSFER FORM (3) VERIFICATION OF SIGNATURE AND AUTHORITY ON
SUCH TRANSFER FORM SIGNING FOR THE BENEFICIARY (4) PAYMENT OF OUR STANDARD
TRANSFER FEE, OUR CURRENT STANDARD FEE IS [ISSUING BANK IS TO INSERT THE
STANDARD TRANSFER FEE HERE] AND (5) ANY OTHER REQUIREMENTS RELATIVE TO THE
UCP 500 AND U.S. GOVERNMENT REGULATIONS.
ALL DRAFTS AND DOCUMENTS REQUIRED UNDER THIS LETTER OF CREDIT MUST BE MARKED:
"DRAWN UNDER [INSERT NAME OF ISSUING BANK HERE] LETTER OF CREDIT NO.
[INSERT L/C NO.]"
ALL COMMUNICATIONS TO [INSERT NAME OF ISSUING BANK HERE] WITH RESPECT TO THIS
IRREVOCABLE STANDBY LETTER OF CREDIT MUST BE ADDRESSED TO OUR OFFICE LOCATED
AT [INSERT NAME AND ADDRESS OF ISSUING BANK HERE], TO THE ATTENTION OF
[INSERT NAME OF THE ISSUING BANK'S LETTER OF CREDIT DEPARTMENT HERE]
ALL DOCUMENTS ARE TO BE DISPATCHED IN ONE LOT BY COURIER SERVICE TO
[INSERT NAME AND ADDRESS OF ISSUING BANK HERE], ATTN:
[INSERT NAME OF ISSUING BANK'S LETTER OF CREDIT DEPARTMENT HERE].
THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING AND
SUCH UNDERTAKING SHALL NOT BE IN ANY WAY MODIFIED, AMENDED OR AMPLIFIED BY
REFERENCE TO ANY DOCUMENT, INSTRUMENT OR AGREEMENT REFERRED TO HEREIN OR IN
WHICH THIS LETTER OF CREDIT IS REFERRED TO OR TO WHICH THIS LETTER OF CREDIT
RELATES, AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY
REFERENCE ANY DOCUMENT, INSTRUMENT OR AGREEMENT.
WE HEREBY ENGAGE WITH YOU THAT ALL DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH
THE TERMS OF THIS CREDIT WILL BE DULY HONORED IF DRAWN AND PRESENTED FOR
PAYMENT AT THIS OFFICE ON OR BEFORE THE EXPIRATION DATE OF THIS CREDIT.
EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATED, THIS CREDIT IS SUBJECT TO THE
"UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS" (1993 REVISION)
INTERNATIONAL CHAMBER OF COMMERCE (PUBLICATION NO. 500).
