EXHIBIT 10.29
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 0000 Xxxxxxxx Xxxx, XX,
Xxxxxxx, Xxxxxxx 00000 (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.
1
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: /s/ Xxxx Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
---------------------------
Title: VP Leasing
---------------------------
TENANT:
VIEWLOCITY, INC., A DELAWARE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
-------------------------------------
Title: Senior VP and CFO
-------------------------------------
EXHIBIT A
ProForma of Initial Letter of Credit
APPLICANT: VIEWLOCITY, INC.
000 XXXXXXXXX XXXXXX XXXXXXX
XXXXXXX, XX 00000
BENEFICIARY: EOP - BUCKHEAD, L.L.C.
C/O EQUITY OFFICE PROPERTIES TRUST
0000 XXXXXXXX XXXX, XX
XXXXXXX, XX 00000
ATTN: BUILDING MANAGER
AMOUNT: USD1,212,468.06
EXPIRY DATE AND PLACE FOR PRESENTATION OF DOCUMENTS: OCTOBER 27, 2000 IMPERIAL
BANK INTERNATIONAL DIVISION, 0000 XXXXXXXXX XXXXX XXXX., 0XX XXX., XXXXXXX
XXXXX, XX 00000
CREDIT IS AVAILABLE WITH IMPERIAL BANK INTERNATIONAL DIVISION AGAINST PAYMENT OF
DRAFTS DRAWN AT SIGHT ON IMPERIAL BANK INTERNATIONAL DIVISION, 0000 XXXXXXXXX
XXXXX XXXX., 0XX XXX., XXXXXXX XXXXX, XX 00000
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 0000 XXXXXXXXX XXXXX
XXXX., 0XX XXX., XXXXXXX XXXXX, XX 00000, 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, 0000 XXXXXXXXX XXXXX XXXX., 0XX XXX., XXXXXXX
XXXXX, XX 00000, 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.
000 XXXXXXXXX XXXXXX XXXXXXX
XXXXXXX, XX 00000
BENEFICIARY: EOP - BUCKHEAD, L.L.C.
C/O EQUITY OFFICE PROPERTIES TRUST
0000 XXXXXXXX XXXX, XX
XXXXXXX, XX 00000
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, 0 XXXXX XXXXXXXXX XXXXX, XXX. 0000, XXXXXXX, XX
00000 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).
