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EXHIBIT 10.25
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (herein called this "First Amendment"),
made and entered into this 5th day of June, 1998, by and between 1277 LENOX PARK
BOULEVARD, LLC, a Georgia limited liability company (herein called "Lessor"),
having an office at x/x Xxxxx Xxxx Xxxxxxxxxx, Xxxxx 000, 0000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, and HARBINGER CORPORATION, a Georgia
corporation (herein called "Lessee") having an office at Suite 340, 0000 Xxxxx
Xxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000;
W I TN E S S E T H: That,
WHEREAS, by virtue of that certain Lease dated October 10, 1997 by and
between Lessor and Lessee (herein called the "Lease"), Lessor leased to Lessee
certain space in the Building (as defined in the Lease);
WHEREAS, the Lease contained an option to expand the Premises (as
defined in the Lease) to include the fourth (4th) floor of the Building;
WHEREAS, Lessor and Lessee desire to further amend the Lease, among
other things, to exercise the expansion option and include the fourth (4th)
floor of the Building in the Premises, all as hereinafter provided;
NOW, THEREFORE, for and in consideration of the premises, TEN DOLLARS,
($10.00) paid by Lessee to Lessor and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
have agreed, and do hereby agree, as follows:
1. Definitions. All capitalized terms shall have the meaning
given to them in the Lease, unless otherwise defined in this First Amendment.
2. Amendments. The Lease has been and hereby is amended as
follows:
2.1 Option to Expand. Section 43.1 has been and is hereby
amended to delete Section 43.1 in its entirety and place in lieu
thereof the following new Section 43.1:
43.1 Lessee has the option to lease and expand the
"Premises" under this Lease (the "Expansion Option") to include
within its definition up to all of the fourth (4th) floor (as may be
leased by Lessee, called the "Expansion Space"), and all of the terms
and conditions of this Lease shall apply with full force and effect
to the expanded Premises after such expansion except as provided for
in this Section 43. To exercise the Expansion Option, Lessee shall
deliver written notice to Lessor on or before the Commencement Date
which notice shall specify the space to be a part of the expansion.
After such exercise and no later
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than ninety (90) days after the Commencement Date, Lessee shall
deliver to Lessor approved plans for the construction of improvements
to the Expansion Space (the "Expansion Space Plans"), which Expansion
Space Plans shall be of the same or better quality and detail as the
Premises Plans. The Lessor's approval of the Expansion Plans shall
not be unreasonably withheld, conditioned or delayed. The
commencement date for the Expansion Space (the "Expansion Space
Commencement Date") shall be the later of (i) the date that is six
(6) months after the Commencement Date, or (ii) if Lessee has timely
delivered the approved Expansion Space Plans, ten (10) days after
substantial completion of the tenant improvements in the Expansion
Space, with Lessee's obligation to pay Annual Base Rental, Base Rent,
Annual Step Rental, Amounts Due, and Proportionate Share of Common
Operating Expenses for such Expansion Space beginning on such
Expansion Space Commencement Date, with Annual Base Rental, Base
Rent, Annual Step Rental, Amounts Due, and Proportionate Share of
Common Operating Expenses paid to Lessor at the rates provided for in
the Lease. For the avoidance of doubt, if Lessee fails to deliver
timely the approved Expansion Space Plans, the Expansion Space
Commencement Date will occur no later than the date that is six (6)
months after the Commencement Date, even if the Expansion Space is
not ready for occupancy on that date. If Lessee elects to lease less
than the entire fourth (4th) floor, then Lessor shall have the right
to approve the location of the space that Lessee shall lease pursuant
to this Section 43 on the fourth (4th) floor. Lessor's approval right
shall not be unreasonably withheld, conditioned or delayed. Should
Lessee request any changes to the approved Expansion Space Plans and
such requested change increases the cost of construction or causes a
delay the completion of the Expansion Space Construction, then Lessee
shall be responsible to pay such increased costs and will be
responsible for the rent as of the date that the Expansion Space
Commencement Date would have occurred but for the delay, as the case
may be, even if Lessee is not yet occupying the Expansion Space.
Lessor shall cause the Expansion Space Improvements
(hereinafter defined) to be constructed and completed substantially
in accordance with the approved Expansion Space Plans. Lessor shall
cause the Expansion Space Improvements to be completed within the
later of 90 days after delivery of Expansion Space Plans or six (6)
months after the Commencement Date.
For purposes of this paragraph 43.1, the term "substantial
completion" shall have the same definition as such term has in
paragraph 10.1.
Upon the substantial completion of the Expansion Space
Improvements, Lessor shall notify Lessee of such completion, and the
parties hereto within three (3) days after such notice shall perform
a walk-through inspection of the Expansion Space Improvements. During
such inspection the parties shall prepare
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a punch-list of defective or incomplete items, if any, which items
Lessor shall correct within thirty (30) days after the date of such
inspection.
All references contained in Section 43.1 shall refer to the references as
redefined by this First Amendment.
2.2 Exercise of Option to Expand. In accordance with the
new Section 43.1 above, by its execution of this First Amendment
Lessee has exercised and hereby exercises its Expansion Option for
the entire fourth (4th) floor of the Building, being approximately
22,958 rentable square feet. Lessor and Lessee acknowledge and agree
that upon the Expansion Space Commencement Date the fourth (4th)
floor shall be included as a part of the "Premises", and the
Expansion Space Improvements shall be included as a part of the
"Premises Improvements."
2.3 Security. By their execution of this First Amendment
Lessor and Lessee acknowledge that Lessee has substituted and/or
replaced the Letter of Credit with a replacement letter of credit in
the face amount of $3,473,000.00 in accordance with Section 43. The
Lease has been and is hereby amended by deleting Exhibit "F" of the
Lease in its entirety and by substituting in lieu thereof Exhibit "F"
to this First Amendment.
2.4 General Contractor. The general contractor (the
"General Contractor") for the build out of the Expansion Space in
accordance with the Expansion Space Plans shall be selected in the
following manner:
2.4.1 After such exercise and no later than sixty
(60) days after the Commencement Date, Lessee shall deliver to
Lessor two (2) names of qualified general contractors and
Lessor shall deliver to Lessee one (1) name of a qualified
general contractor.
2.4.2 After Lessor's receipt of the Expansion
Space Plans, as approved by Lessor, the Lessor shall solicit
bids from each contractor, which bids shall set forth the
price, terms, conditions and time schedule that such
contractor would require if chosen to construct the Expansion
Space in accordance with the Expansion Space Plans. Such bids
must be received within fourteen (14) days after the date
hereof to be considered.
2.4.3 Lessor and Lessee shall, within ten (10)
business days after the receipt of such bids, mutually agree
on a General Contractor. All other factors being equal, Lessor
and Lessee will choose the contractor that submits the lowest
bid. If a discrepancy between Lessor and Lessee remains in the
selection of a contractor, then Lessee's selection of a
contractor shall prevail.
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2.4.4 Notwithstanding the foregoing of this
Section 2.4 to the extent that this Section 2.4 conflicts with
any provision in the Lease for the selection of a General
Contractor, then this Section 2.4 shall control.
3. Ratification. Both Lessor and Lessee acknowledge and confirm
that the Lease, as amended hereby, is in full force and effect. This Lease, as
amended hereby, inures to the benefit of and is binding upon the parties hereto
and their respective successors and assigns. This First Amendment shall be
governed by and construed under the laws of the State of Georgia.
4. Brokerage. Lessor and Lessee covenant, warrant and represent
to each other that no broker except TPA Realty Services, Inc. (herein called
"TPA"), which represents Lessor, and Davidson Associates, Inc. (herein called
"Broker"), which represents Lessee, was instrumental in consummating this First
Amendment and that Lessor and Lessee have had no conversations or negotiations
with any brokers except for TPA and Broker concerning Lessee's leasing of the
Expansion Space. Lessor and Lessee agree to indemnify and hold harmless the
other against and from any claims for any brokerage commissions and all costs,
expenses, and liabilities, including, without limitation, attorneys' fees and
expenses, arising out of any conversations or negotiations had by the
indemnifying party with any broker other than TPA and Broker. Lessee shall be
solely responsible for paying all commissions and other compensation due Broker
in connection with this Lease and Lessor shall be solely responsible for paying
all commissions and other compensation due TPA in connection with this First
Amendment.
5. Counterparts. This First Amendment may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of such counterparts shall constitute one agreement. To facilitate execution and
delivery of this First Amendment, the parties may execute and exchange
counterparts of the signature pages by telefax. The signature of any party to
any counterpart may be appended to any other counterpart.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LESSOR:
1277 LENOX PARK BOULEVARD, LLC, a
Georgia limited liability company
BY: Techpole, Inc., a Georgia corporation,
its manager
By: /s/ Xxxxxxx X. X'Xxxxx
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Xxxxxxx X. X'Xxxxx
President
[SEAL]
LESSEE:
HARBINGER CORPORATION, a Georgia
corporation
By: /s/ Xxxxx Xxxxx
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Name:
Title:
[CORPORATE SEAL]
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EXHIBIT "F"
(LETTER OF CREDIT SCHEDULE)
INITIAL BALANCE: $3,473,000.00
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REDUCTION DATE: BALANCE:
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August 1, 1998 $2,944,460.00
November 1, 1998 $2,415,920.00
February 1, 1999 $1,749,632.00
May 1, 1999 $1,083,344.00
August 1, 1999 $ 442,521.00
