**EXHIBIT10.14.1**

 

**AMENDMENT TO LEASE**

** **

This Amendment to Lease (the“**Amendment**”) is made as of the 15thday of February, 2006, by and between FirstCal Industrial 2 Acquisition, LLC, aDelaware LLC, as landlord (**“Landlord”**)and Eschelon Telecom, Inc., a Delaware corporation, as tenant (**“Tenant”**).

 

**RECITALS**

** **
| A.                             |   | Landlord  is the successor in interest to Duke Realty Limited Partnership, an Indiana  limited partnership . |
|--------------------------------|--------|--------------------------------------------------------------------------------------------------------------|
| (**“Former Owner”**) |

 

 

B.                Former Owner originallyowned the real property commonly known as 6160 Golden Hills Drive, GoldenValley, Minnesota 55416 (the **“Property”**),****and on September 29, 2005, Landlordacquired fee simple title to the Property from the Former Owner.

 

C.                Tenant is the successor ininterest to Cady Communications, a Minnesota corporation (**“Former Tenant”**).

 

D.               Former Owner, as landlord,entered into a certain Lease, dated May 25, 1999, with Former Tenant (the **“Original Lease”),**and pursuant to theOriginal Lease, Former Tenant leased from the Former Owner approximately 33,246rentable square feet in the Property (the **“LeasedPremises”**).

 

E.                On September 29, 2005,Former Owner assigned to Landlord Former Owner’s entire right, title andinterest in, to and under the Original Lease.

 

F.                Former Tenant assigned toTenant Former Tenant’s interest in and under the Original Lease.

 

G.                Landlord and Tenant nowdesire to modify and amend the Original Lease.

 

NOW, THEREFORE, inconsideration of the terms and provisions of this Amendment, Landlord andTenant hereby modify and amend the Original Lease, as follows:

 

1.             Recitals. All of the Recitals set forth above arehereby incorporated into the body of this Amendment, as though separately andspecifically set forth herein.

 

2.             Defined Terms and Conflict. Any capitalized termsused, but not defined, in this Amendment shall be deemed to have the meaningsrespectively ascribed to those terms in the Original Lease. In the event of anyconflict between the terms and provisions of the Original Lease and those ofthis Amendment, the terms and provisions of this Amendment shall control, inall events.

 

3.             Extension of Lease Term. The Lease Term is herebyextended for a period of Five (5) year(s) and one (1) month from February 1,2007, so that the extended Lease Term shall expire on February 29, 2012 (the **“Extended Expiration Date”**). The period oftime from the expiration of the Lease Term described in the Original Leasethrough the Extended Expiration Date is hereinafter referred to as the **“Extended Lease Term.”**

 

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4.             Minimum Annual Rent. During the Extended LeaseTerm, the Minimum Annual Rent and the Monthly Rental Installments of Base Rentshall be calculated based on the following per annum and per rentable squarefoot rates:

 

**Base Rental Payments**

 
| **Lease Period**                           | ** ** | **Per Annum Base Rent  Per Rentable Square  Foot** | ** **  | **Per Annum Base Rent  Per Rentable Square  Foot If Option A Is  Applicable** | ** ** | **Per Annum Base Rent  Per Rentable Square  Foot If Option B Is  Applicable** | ** ** |
|--------------------------------------------|------------|----------------------------------------------------|-------------|-------------------------------------------------------------------------------|------------|-------------------------------------------------------------------------------|------------|
| February 1,  2007 – February 28, 2007 |       | $                                                  |  0.00  |                                                                          | $          |  0.00                                                                    |       | $ |  0.00 |   |
| February 1,  2007 – January 31, 2009  |       | $                                                  |  9.80  |                                                                          | $          |  9.80                                                                    |       | $ |  10.05 |   |
| February 1,  2009 – January 31, 2010  |       | $                                                  |  10.05 |                                                                          | $          |  10.05                                                                   |       | $ |  10.30 |   |
| February 1,  2010 – January 31, 2011  |       | $                                                  |  10.30 |                                                                          | $          |  10.30                                                                   |       | $ |  10.55 |   |
| February 1,  2011 – February 28, 2012 |       | $                                                  |  10.55 |                                                                          | $          |  10.55                                                                   |       | $ |  10.80 |   |

 

5.             Basic Lease Provisions and Definitions. (a)During the Extended Lease Term, the following portions of Section 1.01 of theOriginal Lease are hereby deleted and, in lieu thereof, the following areinstead substituted:

 

Section1.01B.       The term “**Rentable Area**” shall mean the number ofrentable square feet comprising the Leased Premises as of February 1, 2007,after either (a) Tenant’s delivery of the Commitment Letter (defined below) or(b) implementation of Plan A which shall consist of 19,652 square feet ofoffice and 9,171 square feet of warehouse for a total of 28,823 square feet orPlan B which shall consist of 20,926 square feet of office and 8,069 squarefeet of warehouse for a total of 28,995, as the case may be (and as each isdefined below). Landlord shall use commercially reasonable standards,consistently applied, in determining the Rentable Area and the rentable area ofthe Building. Landlord’s determination of Rentable Area shall conclusively bedeemed correct for all purposes hereunder.

 

Section1.01D and E.            The terms “MinimumAnnual Rent” and “Monthly Rental Installment” shall be based upon the rates setforth in Section 4 above.

 

Section1.01G.  The term “Lease Term” shall mean the “Extended Lease Term” asset forth in Section 3 above.

 

Section1.01K.  The term “Broker” shall mean Todd Braufman of EquisCorporation.

 

(b)           The following parts of the Original Lease are herebydeleted and, the lieu thereof, the following is instead substituted:

 

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Section1.01M.               Until further notice,the name and address of Landlord shall be FirstCal Industrial 2 Acquisition,LLC, c/o First Industrial Realty Trust, Inc., 7625 Golden Triangle Drive, SuiteT, Eden Prairie, Minnesota 55344.

 

6.             Tenant’s Insurance. Section 9.02 of the OriginalLease is hereby deleted and, in lieu thereof, the following is insteadsubstituted:

 

6.1Tenant shall purchase, at its own expense, and keep in force at all timesduring the Lease Term the policies of insurance set forth below (collectively, **“Tenant’s Policies”**).****All Tenant’s Policies shall (a) be issuedby an insurance company with a Best’s rating of A or better and otherwisereasonably acceptable to Landlord and shall be licensed to do business in thestate in which the Leased Premises is located; (b) provide that said insuranceshall not be canceled or materially modified unless 30 days’ prior writtennotice shall have been given to Landlord; (c) provide for deductible amountsthat are reasonably acceptable to Landlord (and its lender, if applicable) and(d) otherwise be in such form, and include such coverages, as Landlord mayreasonably require. The Tenant’s Policies described in (i) and (ii) below shall(1) provide coverage on an occurrence basis; (2) name Landlord (and its lender,if applicable) as additional insured; (3) provide coverage, to the extentinsurable, for the indemnity obligations of Tenant under this Lease; (4)contain a separation of insured parties provision; (5) be primary, notcontributing with, and not in excess of, coverage that Landlord may carry; and(6) provide coverage with no exclusion for a pollution incident arising from ahostile fire. All Tenant’s Policies (or, at Landlord’s option, Certificates ofInsurance and applicable endorsements, including, without limitation, an“Additional Insured-Managers or Landlords of Premises” endorsement) shall bedelivered to Landlord prior to the Commencement Date and renewals thereof shallbe delivered to Landlord’s corporate and regional notice addresses at least 30days prior to the applicable expiration date of each Tenant’s Policy. In theevent that Tenant fails, at any time or from time to time, to comply with therequirements of the preceding sentence. Landlord may (A) order such insuranceand charge the cost thereof to Tenant, which amount shall be payable by Tenantto Landlord upon demand, as Additional Rent or (B) impose on Tenant, asAdditional Rent, a monthly delinquency fee, for each month during which Tenantfails to comply with the foregoing obligation, in an amount equal to fivepercent (5%) of the Monthly Rental Installments then in effect. Tenant shallgive prompt notice to Landlord and Agent of any bodily injury, death, personalinjury, advertising injury or property damage occurring in and about theProperty.

 

Tenantshall purchase and maintain, throughout the Term, a Tenant’s Policy(ies) of:(i) commercial general or excess liability insurance, including personal injuryand property damage, in the amount of not less than $2,000,000.00 peroccurrence, and $5,000,000.00 annual general aggregate, per location; (ii)comprehensive automobile liability insurance covering Tenant against anypersonal injuries or deaths of persons and property damage based upon orarising out of the ownership, use, occupancy or maintenance of a motor vehicleat the Premises and all areas appurtenant thereto in the amount of not lessthan $1,000,000, combined single limit; (iii) commercial property insurance(including reasonable business interruption limits) covering Tenant’s Property(at its full replacement cost); (iv) workers’ compensation insurance per theapplicable state statutes covering all employees of Tenant; and if Tenanthandles, stores or utilizes Hazardous Substances in its business operations,(v) pollution legal liability insurance.

 

 

 

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7.             Landlord’sInsurance. The following is hereby added as an additional Section 9.03:

 

Duringthe Lease Term, Landlord shall maintain the following types of insurance, inthe amounts specified below (the cost of which shall be included in OperatingExpenses): (a) commercial property insurance policy covering the Building (atits full replacement cost), but excluding Tenant’s personal property; (b) commercialgeneral public liability insurance covering Landlord for claims arising out ofliability for bodily injury, death, personal injury, advertising injury andproperty damage occurring in and about the Building and otherwise resultingfrom any acts and operations of Landlord, its agents and employees; (c) rentloss insurance; and (d) any other insurance coverage deemed appropriate byLandlord or required by Landlord’s lender. All of the coverages described in(a) through (d) shall be determined from time to time by Landlord, in its solediscretion. All insurance maintained by Landlord shall be in addition to andnot in lieu of the insurance required to be maintained by the Tenant.

 

8.             Waiver of Subrogation. Section 8.02 of theOriginal Lease is hereby deleted and, in lieu thereof, the following is insteadsubstituted:

 

Notwithstandinganything to the contrary in this Lease, Landlord and Tenant mutually waivetheir respective rights of recovery against each other and each other’sofficers, directors, constituent partners, members, agents and employees, andTenant further waives such rights against (a) each lessor under any ground orunderlying lease encumbering the Property and (b) each lender under anymortgage or deed of trust or other lien encumbering the Property (or anyportion thereof or interest therein), to the extent any loss is insured againstor required to be insured against under this Lease, including, but not limitedto, losses, deductibles or self-insured retentions covered by Landlord’s or Tenant’scommercial property, general liability, automobile liability or workers’compensation policies described above. This provision is intended to waive,fully and for the benefit of each party to this Lease, any and all rights andclaims that might give rise to a right of subrogation by any insurance carrier.Each party shall cause its respective insurance policy(ies) to be endorsed toevidence compliance with such waiver.

 

9.             Late Charges and Default Interest. Section 3.04of the Original Lease is hereby deleted and, in lieu thereof, the following isinstead substituted:

 

Tenantacknowledges that Landlord shall incur certain additional unanticipatedadministrative and legal costs and expenses if Tenant fails to timely pay anypayment required hereunder. Therefore, in addition to the other remediesavailable to Landlord hereunder, if any payment required to be paid by Tenantto Landlord hereunder shall not be paid within five (5) days of the date suchpayment was due, Tenant shall pay a late fee equal to five percent (5%) of thedelinquent payment. If a payment remains delinquent beyond the expiration ofany applicable cure period, the delinquent amount shall bear interest (from thedate on which the cure period expires through the date on which the delinquencyis paid, in full, inclusive of interest) at the rate of five percent (5%) perannum above the “prime” or “reference” or “base” rate (on a per annum basis) ofinterest publicly announced as such, from time to time, by JPMorgan Chase BankN.A. (the **“Default Rate”**). Thevarious rights, remedies and elections of Landlord reserved, expressed orcontained herein are cumulative and no one of them shall be deemed exclusive ofthe others as of such other rights, remedies, options or elections as are nowor may hereafter be conferred upon Landlord by law.

 

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10.           Financial Information. Section 16.09 of theOriginal Lease is hereby deleted and, in lieu thereof, the following is herebysubstituted:

 

Asof the date of this Amendment, Tenant is a publicly traded entity; therefore,Landlord acknowledges and agrees that, if and to the extent that Landlorddesires financial information concerning Tenant, Landlord shall examine andreview any and all of the publicly-available information concerning Tenant andTenant shall not be required to provide any other financial information toLandlord. If, however, at any time during the Lease Term, Tenant is no longer apublicly traded entity, then from time to time during the Lease Term, but notmore than once per six (6) month period (except in the event that Tenant is indefault under this Lease or in the event that Landlord is pursuing a sale orrefinancing of the Property), Tenant shall deliver to Landlord information anddocumentation describing and concerning Tenant’s financial condition, and inform and substance reasonably acceptable to Landlord, within ten (10) businessdays following Landlord’s written request therefor. Upon Landlord’s request,Tenant shall provide to landlord the most currently available audited financialstatement of Tenant; and if no such audited financial statement is available,then Tenant shall instead deliver to Landlord its most currently availablebalance sheet and income statement. Furthermore, upon the delivery of any suchfinancial information from time to time during the Lease Term, Tenant shall bedeemed to automatically represent and warrant to Landlord that the financialinformation delivered to Landlord is true, accurate and complete, and thatthere has been no adverse change in the financial condition of Tenant since thedate of the then-applicable financial information.

 

11.           Hazardous Substances Reporting. The following ishereby added as an additional Section 15.08:

 

Tenantshall immediately give Landlord written notice of both (a) any suspected orpotential breach of Tenant’s obligations under Article 15 upon learning of thepresence of or any release of any Hazardous Substances in, on, to or from theLeased Premises or the Property, and (b) Tenant’s receipt of any notices fromgovernmental agencies pertaining to Hazardous Substances which may affect thePremises or the Property. Tenant has delivered to Landlord (or shall deliver toLandlord, on or before the commencement of the Renewal Term), a completedTenant Operations Inquiry, in the form attached hereto as Exhibit “C”and Tenant hereby warrants the accuracy and completeness of the information setforth therein. Such Tenant Operations Inquiry shall be revised by Tenant anddelivered to Landlord from time to time upon Landlord’s written requesttherefor but not more than once per six (6) month period (except in the eventthat Tenant is in default under this Lease). The obligations of Tenanthereunder shall survive the expiration of earlier termination, for any reason,of this Lease.

 

12.           Option to Renew. Section 16.12 of the OriginalLease is hereby deleted and, in lieu thereof, the following is insteadsubstituted:

 

16.12.1Tenant shall have the option (**“RenewalOption”**)****to renew thisLease with respect only to the entirety of the Leased Premises, as it iscomprised and configured on February 1, 2007, for two (2) additional andconsecutive terms of five (5) years each (each, a **“Renewal Term”**),****onall the same terms and conditions set forth in this Lease, except that BaseRent during each Renewal Term shall be equal to Fair Market Rent (as defined inSection 16.12.2 below). Tenant shall deliver written notice to Landlord ofTenant’s election to exercise the Renewal Option (“**Renewal**

 

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**Notice”**)****notless than six (6) months, nor more than nine (9) months, prior to the expirydate of the original Term (or the first Renewal Term, as the case may be); andif Tenant fails to timely deliver the Renewal Notice to Landlord, then Tenantshall automatically be deemed to have irrevocably waived and relinquished thethen-applicable Renewal Option. If Tenant fails to timely exercise the firstRenewal Option, then Tenant shall have no further Renewal Option.

 

16.12.2    **“FairMarket Rent”**shall be determined by Landlord, in its sole, but goodfaith, discretion based upon the annual base rental rates then being charged(as of the date on which Tenant delivers the then-applicable Renewal Notice) inthe industrial submarket sector of the geographic area where the Building issituated for comparable space and for a lease term commencing on or about thecommencement date of the then-applicable Renewal Term and equal in duration tothe then-applicable Renewal Term, taking into consideration: the geographiclocation, quality and age of the building; the location and configuration ofthe relevant space within the applicable building; the extent of service to beprovided to the proposed tenant thereunder; applicable distinctions between“gross” lease and “net” leases; the creditworthiness and quality of Tenant;leasing commissions; free rent; tenant improvements allowances; movingallowances; and any other relevant term or condition in making such evaluation,as reasonably determined by Landlord. Landlord shall notify Tenant ofLandlord’s determination of Fair Market Rent for the then-applicable RenewalTerm, in writing (the **“Base Rent Notice**”)within fifteen (15) business days after receiving the Renewal Notice.

 

16.12.3    Tenant shall then have fifteen (15) businessdays after Landlord’s delivery of the Base Rent Notice in which to adviseLandlord, in writing (the **“Base Rent ResponseNotice”**) whether Tenant (i) is prepared to accept the Fair MarketRent established by Landlord in the then-applicable Base Rent Notice andproceed to lease the Premises, during the applicable Renewal Term, at that FairMarket Rent; or (ii) elects to withdraw and revoke its Renewal Notice,whereupon the then-applicable Renewal Option shall automatically be renderednull and void; or (iii) elects to contest Landlord’s determination of FairMarket Rent. In the event that Tenant fails to timely deliver the Base RentResponse Notice, then Tenant shall automatically be deemed to have elected (i)above. Alternatively, if Tenant timely elects (ii), then this Lease shallexpire on the original expiry date of the initial Term or the expiry date ofthe initial Renewal Term, as the case may be. If, however, Tenant timely elects(iii), then the following provisions shall apply:

 

16.12.3.1 The Fair Market Rent shall be determined byeither the Independent Brokers or the Determining Broker, as provided anddefined below.

 

16.12.3.2 Within ten (10) business days after Tenantdelivers its Base Rent Response Notice, electing (iii), each of Landlord andTenant shall advise the other, in writing (the **“Arbitration Notice”**) of both (i) the identity of theindividual that each of Landlord and Tenant, respectively, is designating toact as Landlord’s or Tenant’s, as the case may be, duly authorizedrepresentative for purposes of the determination of Fair Market Rent pursuantto this Section 16.12.3 (the **“Representatives”**);****and (ii) a list of three (3) proposedlicensed real estate brokers, any of which may serve as one of the IndependentBrokers (collectively, the **“BrokerCandidates”**).****EachBroker Candidate:

 

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(A)            shall be duly licensed in thejurisdiction in which the Premises is located;

 

(B)             shall have at least five (5) years’experience, on a full-time basis, leasing industrial space(warehouse/distribution/ancillary office) in the same general geographic areaas that in which the Premises is located, and at least three (3) of those five(5) years of experience shall have been consecutive and shall have elapsedimmediately preceding the date on which Tenant delivers the Renewal Notice; and

 

(C)             shall be independent and have nothen-pending (as of the date Landlord or Tenant designates the broker as aBroker Candidate) brokerage relationship, formal or informal, oral or written,with any or all of Landlord, Tenant, and any affiliates of either or both ofLandlord and Tenant (“**Brokerage Relationship**”),nor may there have been any such Brokerage Relationship at any time during thetwo (2) year period immediately preceding the broker’s designation, by Landlordor Tenant, as a Broker Candidate.

 

16.12.3.3.                Within five (5) business daysafter each of Landlord and Tenant delivers its Arbitration Notice to the other,Landlord and Tenant shall cause their respective Representatives to conduct atelephonic meeting at a mutually convenient time. At that meeting, the two (2)Representatives shall examine the list of six (6) Broker Candidates and shalleach eliminate two (2) names from the list on a peremptory basis. In order toeliminate four (4) names, first, the Tenant’s Representative shall eliminate aname from the list and then the Landlord’s Representative shall eliminate aname therefrom. The two (2) Representatives shall alternate in eliminatingnames from the list of six (6) Broker Candidates in this manner until each ofthem has eliminated two (2) names. The two (2) Representatives shallimmediately contact the remaining two (2) Broker Candidates (the “**Independent Brokers**”),****and engage them, as behalf of Landlord andTenant, to determine the Fair Market Rent in accordance with the provisions ofthis Section 16.12.3.

 

16.12.3.4 The Independent Brokers shall determine theFair Market Rent within fifteen (15) days of their appointment. Landlord andTenant shall each make a written submission to the Independent Brokers,advising of the rate and any then-applicable concessions that should beincluded in Fair Market Rent, including, but not limited to, free rent and arefurbishment allowance, that the submitting party believes should be the FairMarket Rate, together with whatever written evidence or supporting data thatthe submitting party desires in order to justify its desired rate of FairMarket Rent; provided, in all events, however, that the aggregate maximumlength of each party’s submission shall not exceed ten (10) pages (each suchsubmission package, a “**FMR Submission**”).****The Independent Brokers shall be obligatedto choose one (1) of the parties’ specific proposed rates of Fair Market Rent,without being permitted to effectuate any compromise position.

 

16.12.3.5 In the event, however, that the IndependentBrokers fail to reach agreement, within twenty (20) days after the date onwhich both Landlord and Tenant deliver the FMR Submissions to the IndependentBrokers (the “**Decision Period**”),as to which of the two (2) proposed rates of Fair Market Rent should beselected, then, within five (5) days after the expiration of the

 

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Decision Period, theIndependent Brokers shall jointly select a real estate broker who (x) meets allof the qualifications of a Broker Candidate, but was not included in theoriginal list of six (6) Broker Candidates; and (y) is not affiliated with anyor all of (A) either or both of the Independent Brokers and (B) the real estatebrokerage companies with which either or both of the Independent Brokers isaffiliated (the “**Determining Broker**”).The Independent Brokers shall engage the Determining Broker on behalf of Landlordand Tenant (but without expense to the Independent Brokers), and shall deliverthe FMR Submissions to the Determining Broker within five (5) days after thedate on which the Independent Brokers select the Determining Broker pursuant tothe preceding sentence (the “**SubmissionPeriod**”).

 

16.12.3.6 The Determining Broker shall make adetermination of the Fair Market Rent within fifteen (15) days after the dateon which the Submission Period expires. The Determining Broker shall berequired to select one of the parties’ specific proposed rates of Fair MarketRent, without being permitted to effectuate any compromise position; provided,however, that in the event that the rates of Fair Market Rent proposed by eachof Landlord and Tenant in their respective FMR Submissions differ by no morethan five percent (5.0%), then the Determining Broker shall have right, but notthe obligation, to average the two (2) proposed rates of Fair Market Rent inorder to conclusively determine Fair Market Rent.

 

16.12.3.7 The decision of the Independent Brokers or theDetermining Broker, as the case may be, shall be conclusive and binding onLandlord and Tenant, and neither party shall have any right to contest orappeal such decision. Judgment may be entered, in a court of competentjurisdiction, upon the decision of the Independent Brokers or the DeterminingBroker, as the case may be.

 

16.12.3.8 In the event that the initial Term or the firstRenewal Term, as the case may be, expires and the then-applicable Renewal Termcommences prior to the date on which the Independent Brokers or the DeterminingBroker, as the case may be, renders their/its decision as to the Fair MarketRent, then from the commencement date of that Renewal Term through the date onwhich the Fair Market Rent is determined under this Section 16.12 (the “**Determination Date**”),****Tenant shall pay monthly Base Rent toLandlord at the same rate of monthly Base Rent in effect immediately precedingthe commencement date of the then-applicable Renewal Term; provided, however,that in the event that the Determination Date does not occur within fifteen(15) days after the date on which the then-applicable Renewal Term commences,then commencing with the sixteenth (16th ) day of that Renewal Term,Tenant shall pay monthly Base Rent to Landlord at a rate that is 105% of therate of monthly Base Rent in effect as of the date immediately preceding thedate on which then then-applicable Renewal Term commences (the “**Temporary Base Rent**”); and within ten (10)business days after the Determination Date, Landlord shall pay to Tenant, orTenant shall pay to Landlord, whatever sum that Landlord or Tenant, as the casemay be, owes the other (the “**Catch-Up Payment**”),****based on the Base Rent (including, but notlimited to, Temporary Base Rent), actually paid and the Fair Market Rent due(as determined, by the Independent Brokers or the Determining Broker, as thecase may be) during that portion of the Renewal Term that elapses before theCatch-Up Payment is paid, in full (together with interest thereon, as providedbelow). The Catch-Up

 

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Payment shall bear interestat the Default Rate from the date each monthly component of the Catch-UpPayment would have been due, had the Fair Market Rent been determined prior tothe commencement of the Renewal Term, through the date on which the Catch-UpPayment is paid, in full (inclusive of interest thereon).

 

16.12.3.9 The party whose proposed rate of Fair MarketRent is not selected by the Independent Brokers or the Determining Broker, asthe case may be, shall bear all costs of all counsel, experts or otherrepresentatives that are retained by both parties, together with all othercosts of the arbitration proceeding described in this Section 16.3, including,without limitation, the fees, costs and expenses imposed or incurred by any orall of the Independent Brokers and the Determining Broker, except that, in theevent the Determining Broker does not select one of the parties’ specificproposed rates of Fair Market Rent but instead effectuates a compromiseposition (only as permitted pursuant to Section 16.12.3.6), each party shallpay its own costs of counsel, experts or other representatives, together withits share of the costs of the arbitration proceeding described in this Section16.3, including, without limitation, the fees, costs and expenses imposed orincurred by the Independent Determining Broker.

 

16.12.3.10               Unless otherwise expressly agreedin writing, during the period of time that any arbitration proceeding ispending under this Section 16.12.3, Landlord and Tenant shall continue tocomply with all those terms and provisions of this Lease that are not thesubject of their dispute and arbitration proceeding, most specificallyincluding, but not limited to, Tenant’s monetary obligations under this Lease;and, with respect to the payment of Base Rent during that portion of theRenewal Term that elapses during the pendency of any arbitration proceedingunder this Section 16.12.3, the provisions of Section 16.12.3.8 shall apply.

 

16.12.3.11               During any period of time that anarbitration is pending or proceeding under this Section 16.12.3, Tenant shallhave no right to assign this Lease or enter into any sublease for all or anyportion of the Premises, notwithstanding any provision to the contrary in thisLease. Furthermore, if this Lease requires that Landlord perform any tenantimprovement work in connection with the then-applicable Renewal Term, Landlordshall be relieved of any such obligation during the pendency of any arbitrationproceeding under this Section 16.12.3.

 

16.12.4    The Renewal Option is granted subject to allof the following conditions:

 

(a)                     As of the date on which Tenant delivers itsRenewal Notice and continuing through the commencement date of the RenewalTerm, this Lease shall be in full force and effect and no act or omission shalloccur which, with the giving of notice or the passage of time, or both, shallconstitute a breach or default by Tenant under this Lease.

 

(b)                    There shall be no further right of renewalafter the expiration of the second Renewal Term.

 

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(c)                     The Renewal Option is personal to Tenant. Inthe event that Tenant assigns its interest under this Lease or subleases all orany portion of the Premises, whether or not in accordance with the requirementsof Article 11, and whether directly or indirectly, the provisions of thisSection 16.12.3 shall not be available to, or run to the benefit of, and maynot be exercised by, any assignee or sublessee.

 

(d)                    Unless Tenant delivers a Commitment Noticepursuant to Section 14 below, then the Tenant’s Renewal Option shall only applyto the Reduced Premises.

 

13.           Construction of Tenant Improvements. Landlord shallprovide an allowance for Tenant Improvements as set forth in this Section 13 asfollows:

 

(a)                     Landlord shall provide an allowance in amaximum amount of eight dollars ($8.00) per rentable square foot of the ReducedPremises (defined below), unless, prior to the TI Allowance Commencement Date(defined below), Tenant delivers a Commitment Notice to continue to lease theentirety of the currently existing Leased Premises throughout the ExtendedLease Term, in which event such allowance shall be based upon the rentablesquare footage of the entire Leased Premises (the **“Allowance”**) to be used only for the following purposes: (i)for refurbishment of the Reduced Premises or the Leased Premises, as the casemay be, (ii) to reconfigure furniture at the Reduced Premises or the LeasedPremises, as the case may be, and (iii) to demise the Reduced Premises from theRelinquished Space or the Additional Space, as the case may be (if applicable);

 

(b)                    Tenant acknowledges that Landlord has agreedto perform the Tenant Improvements as set forth in the Work Letter attachedhereto as Exhibit C (the **“Work Letter”**).****Except as otherwise specifically providedin either or both of this Lease and the Work Letter, Landlord shall not beobligated to make any repairs, replacement or improvements of any kind ornature to the foregoing in connection with, or in consideration of, this Lease,nor shall Landlord be required to expend any monies pursuant to the Work Letterin excess of the Allowance.

 

(c)                     Landlord shall have no obligation toconstruct any of the Tenant Improvements unless and until the first to occur of(a) February 1, 2007, being the commencement date of the Extended Lease Term or(b) the date on which Landlord and a third party tenant enter into an AS Lease,as defined below, and (c) the date on which Plan A is implemented (whichever of(a), (b) or (c) is applicable, the **“TIAllowance Commencement Date”**).

 

(d)                    All rights of Tenant and obligations ofLandlord contained in this Section 13 and the Work Letter shall apply solelyif, as of the TI Allowance Commencement Date, this Lease shall be in full forceand effect and no act or omission shall occur which, with the giving of noticeor the passage of time, or both, shall constitute a breach or default by Tenantunder this Lease.

 

(e)                     Within thirty (30) days following substantialcompletion of, and payment in full for, the Tenant Improvements **(“Substantial Completion and Payment”),**andto the extent that unexpended funds remain available in the Allowance,

 

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Landlord shall pay toTenant, as an allowance for Tenant’s purchase of additional personal propertyto be utilized for Tenant’s business operations in the Leased Premises,including, but not limited to, furniture and equipment, and to otherwise provideTenant with funds to facilitate the cleaning and redecorating of the LeasedPremises, an amount equal to the lesser of (i) the then-remaining andunexpended portion of the Allowance; and (ii) a sum equal to the product of (x)$2.00 and (y) the Rentable Area as of February 1, 2007.

 

14.           Additional Space and Retained Space. Tenant hasadvised Landlord that Tenant wishes to relinquish its lease, occupancy andpossession of a portion of its existing Leased Premises. Landlord has advisedTenant that a third party that is already an existing tenant in the Building,with leased premises contiguous to a portion of the existing Leased Premises(the **“Adjacent Tenant”**)****may be interested in expanding its ownexisting leased premises to incorporate a portion of Tenant’s existing LeasedPremises, in the manner depicted with diagonal lines on Exhibit “A”attached hereto and incorporated herein by this reference (such expansion bythe Adjacent Tenant and corresponding reduction in the Leased Premises, **“Plan A”**).****Landlord shall have the right to pursue negotiations with theAdjacent Tenant to document and implement Plan A at any time prior to February1, 2007, on whatever terms Landlord deems acceptable, in its sole discretion.If, at any time prior to February 1, 2007, Landlord advises Tenant that Plan Awill be implemented (subject to the notice requirement imposed in the followinggrammatical paragraph), then at Landlord’s direction, Tenant will promptlyenter into a further amendment to this Lease in order to irrevocably andunconditionally relinquish any and all right to possession of that portion ofthe existing Leased Premises depicted with diagonal lines on Exhibit “A”(the **“Relinquished Space”**), and toappropriately adjust the Rentable Area, the Base Rent and Tenant’sProportionate Share in order to reflect the reduced rentable square footagecomprising the resulting Leased Premises. In the event, however, that Landlordfails to implement Plan A on or before February 1, 2007, then effective of thatdate, the existing Leased Premises shall automatically be modified so as toreduce the existing Leased Premises by 4,251 rentable square feet (the **“Additional Space”),**as depicted on Exhibit“B” attached hereto and incorporated herein by this reference (suchreduction in the Leased Premises, **“Plan B”),**andif Plan B is applicable, then Landlord and Tenant shall promptly enter into afurther amendment to this Lease in order to memorialize the reduced RentableArea of the Leased Premises, and corresponding adjustments in the Base Rent andTenant’s Proportionate Share. (The Leased Premises, as reduced pursuant to PlanA or Plan B, whichever is applicable, is sometimes referred to as the **“Reduced Premises”**)**.**If,****atany time prior to February 1, 2007, Landlord concludes, in its sole, butreasonable, discretion, that Plan A will not be implemented on or beforeFebruary 1, 2007 (such date on which Landlord makes such determination, the **“Plan A Abandonment Date”**)**,**then, promptly following the Plan AAbandonment Date, Landlord shall engage an independent leasing broker to marketthe Additional Space for lease to an independent third party. Landlord shalluse reasonable and good faith efforts to lease the Additional Space to such athird party prior to February 1, 2007 and on terms acceptable to Landlord inits sole, but reasonable, discretion. In the event that Landlord elects toenter into a lease with a third party tenant for the Additional Space (the **“AS Lease”**), then upon execution anddelivery of the AS Lease, this Lease shall automatically be amended (effectiveas of the commencement date of the AS Lease) so as to reduce the rentablesquare footage of the Leased Premises pursuant to Plan B, and Landlord andTenant shall promptly thereafter enter into a further amendment to this Leaseto reflect the reduction in the Rentable Area and the corresponding adjustmentand reduction in the Base Rent and Tenant’s Proportionate Share so as toreflect the Reduced Premises. In the event that Landlord fails, for any reason,to enter into the AS Lease on or before February 1, 2007, then Plan B shall beimplemented, as provided above.

 

11

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Notwithstanding theforegoing, however, Tenant shall have the unilateral right at any time prior tothe first to occur of (i) the implementation of Plan A, (ii) the execution anddelivery of the AS Lease by Landlord and the third party tenant; and (ii)February 1, 2007, to deliver written notice to Landlord, advising Landlord thatTenant unconditionally elects to continue to lease the entire Leased Premises,inclusive of the Relinquished Space and the Additional Space, throughout theLease term, including the Extended Lease Term (the **“Commitment Notice”**). From and after Tenant’s delivery of theCommitment Notice, Landlord shall have no further right to implement Plan A norany obligation to market the Additional Space for lease to a third party, andTenant shall be obligated to reimburse Landlord for all (if any) reasonable,documented out-of-pocket costs and expenses that either or both of Landlord andits leasing broker incurred in connection with the marketing and potentialleasing of the Additional Space (the **“LeasingCosts”**); provided, however, that the maximum aggregate amount ofLeasing Costs that Tenant shall be obligated to pay to Landlord is $1,500.00.Tenant shall pay the Leasing Costs to Tenant within ten (10) days afterLandlord’s written demand therefor (delivered with reasonable evidence of theLeasing Costs). Landlord shall not enter into either (1) any lease amendmentwith the Adjacent Tenant to implement Plan A; or (2) the AS Lease without firstproviding Tenant with at least ten (10) days’ notice of Landlord’s intent toenter into either of (1) or (2), as the case may be, and Tenant shall have theright to deliver a Commitment Notice to Landlord within such ten (10) dayperiod, whereupon Landlord shall not implement Plan A or enter into the ASLease, as the case may be, but instead, Tenant shall be unconditionallyobligated to continue leasing the entire Leased Premises (inclusive of theRelinquished Space and the Additional Space) throughout the Lease term,including the Extended Lease Term, and Tenant shall also be required toreimburse Landlord for the Leasing Costs, as provided above.

 

15.           Broker. Section 16.06 of the Original Lease ishereby deleted and, in lieu thereof, the following is instead substituted:

 

Tenantcovenants, warrants and represents that TODD BRAUFMAN of Equis Corporation wasthe only broker to represent Tenant in the negotiation of this Lease (**“Tenant’s Broker”**). Landlord shall besolely responsible for paying the commission of Tenant’s Broker pursuant to aseparate agreement. Each party agrees to and hereby does defend, indemnify andhold the other harmless against and from any brokerage commissions or finder’sfees or claims therefor by a party claiming to have dealt with the indemnifyingparty and all costs, expenses and liabilities in connection therewith,including, without limitation, reasonable attorneys’ fees and expenses, for anybreach of the foregoing. The foregoing indemnification shall survive thetermination or expiration of this Lease.

 

16.           Waiver of Trial by Jury. THELANDLORD AND THE TENANT, TO THE FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO,HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY ANY PARTY TOTHIS LEASE WITH RESPECT TO THIS LEASE, THE LEASED PREMISES, OR ANY OTHER MATTERRELATED TO THIS LEASE OR THE LEASED PREMISES.

 

17.                                 Miscellaneous.

 

17.1  Entire Agreement. This Amendmentconstitutes the entire understanding between the parties with respect to thetransaction contemplated herein, and all prior or contemporaneous oralagreements, understandings, representations and statements, and

 

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all prior writtenagreements, understandings, letters of intent and proposals are merged intothis Amendment. Except as otherwise expressly provided herein, neither thisAmendment nor any provisions hereof may be waived, modified, amended,discharged or terminated except by an instrument in writing signed by the partyagainst which the enforcement of such waiver, modification, amendment,discharge or termination is sought, and then only to the extent set forth insuch instrument.

 

17.2             No Recording. Neither this Amendment nor anymemorandum thereof shall be recorded and the act of recording by Tenant shallbe deemed a default by Tenant hereunder.

 

17.3             Governing Law. This Amendment shall be governedby and construed in accordance with the laws of the State of Minnesota.

 

17.4             Construction of Agreement. In construing thisAmendment, all headings and titles are for the convenience of the parties onlyand shall not be considered a part of this Amendment. Whenever required by thecontext, the singular shall include the plural and the masculine shall includethe feminine and vice versa. This Amendment shall not be construed as ifprepared by one of the parties, but rather according to its fair meaning as awhole, as if both parties had prepared it. All (if any) Exhibits attachedhereto are incorporated in this Amendment by reference thereto.

 

17.5             Partial Invalidity. The provisions of thisAmendment shall be deemed independent and severable, and the invalidity orpartial invalidity or enforceability of any one provision shall not affect thevalidity of enforceability of any other provision hereof.

 

17.6             Counterparts; Facsimile. This Amendment may beexecuted in multiple counterparts and shall be valid and binding with the sameforce and effect as if all parties had executed the same Amendment. A fullyexecuted facsimile copy of this Amendment shall be effective as an original.

 

[SIGNATUREPAGE TO FOLLOW]

 

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IN WITNESS WHEREOF, theparties executed this Amendment as of the                day of January, 2006.

 
| ** ** | **LANDLORD****:**                                                              |                                                                                                        |
|------------|--------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------|
| ** ** | ** **                                                                     |
|       | FirstCal Industrial 2  Acquisition, LLC,  a Delaware limited liability company |
|       |                                                                           |
|       | By:                                                                            | FirstCal 2 Industrial  Leasing Manager, LLC, a  Delaware limited liability company and its leasing  manager |
|       |                                                                           |
|       |                                                                           | By:                                                                                                         | First Industrial, L.P., a  Delaware limited  partnership, its sole member |
|       |                                                                           |
|       |                                                                           |                                                                                                        | By: | First Industrial Realty  Trust, Inc., a  Maryland corporation and its sole  general partner |
|       |                                                                           |
|       |                                                                           |                                                                                                        |   | By: | /s/ Chris William |
|       |                                                                           |                                                                                                        |   | Name: | Chris William |
|       |                                                                           |                                                                                                        |   | Title: | SR Regional Director |
|            |                                                                                |                                                                                                             |  |  |  |  |  |

 

 
| ** ** | **TENANT****:**                                     |                     |
|------------|-----------------------------------------------------|--------------------------|
| ** ** |                                                |
| ** ** | **ESCHELON  TELECOM, INC.,**a  Delaware corporation |
| ** ** | ** **                                          |
|       | By:                                                 | /s/ Michael A. Donahue   |
|       | Name:                                               | Michael A. Donahue       |
|       | Title:                                              | VP Finance and Treasurer |
|            |                                                     |                          |  |

 

14

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**EXHIBIT A**

** **

**PLAN A**

 

A-1

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**EXHIBIT B**

** **

**PLAN B**

 

B-1

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**EXHIBIT C**

** **

**TENANT OPERATIONS INQUIRY FORM**

** **

 
| 1.     | Name of Company/Contact                                       | Michele Speranza-diforza                          |
|--------|---------------------------------------------------------------|---------------------------------------------------|
| 2.     | Address/Phone                                                 |  730 2nd Ave S # 900, Minneapolis,  MN 55402 |
|   |                                                          | 612.436.6621                                      |
| 3.     | Provide a brief  description of your business and operations: |                                              |
|   | Telecommunications  services & Products                   |
|        |                                                               |                                                   |  |  |

 

4.                          Will you be required to make filings andnotices or obtain permits as required by Federal and/or State regulations forthe operations at the proposed facility? Specifically:

 
| a. SARA Title III Section  312 (Tier II) reports                        | *** *** | ***YES*** | *** *** | ***NO*** |
|-------------------------------------------------------------------------|--------------|-----------|--------------|----------|
| (> 10,000lbs. of  hazardous materials STORED at any one time)        |         |      |         |     |
| b.SARA Title III Section  313 (Tier III) Form R reports                 | *** *** | ***YES*** | *** *** | ***NO*** |
| (> 10,000lbs. of  hazardous materials USED per year)                 |         |      |         |     |
| c. NPDES or SPDES  Stormwater Discharge permit                          | *** *** | ***YES*** | *** *** | ***NO*** |
| (answer “No” if  “No-Exposure Certification” filed) |         |      |         |     |
| d. EPA Hazardous Waste  Generator ID Number                             | *** *** | ***YES*** | *** *** | ***NO*** |

 

5.             Provide a list of chemicals and wastes that will be usedand/or generated at the proposed location.

 

Routine office and cleaningsupplies are not included. Make additional copies if required.                  N/A

 
| **Chemical/Waste** | ** ** | **Approximate  Annual  Quantity Used or  Generated** | ** ** | **Storage  Container**(**s)**(**i.e. Drums, Cartons, Totes,   Bags, ASTs, USTs, etc)** | ** ** |
|--------------------|------------|------------------------------------------------------|------------|----------------------------------------------------------------------------------------|------------|
| ** **         | ** ** | ** **                                           | ** ** | ** **                                                                             | ** ** |
| ** **         | ** ** | ** **                                           | ** ** | ** **                                                                             | ** ** |

 

C-1

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**EXHIBIT D**

** **

**WORK LETTER**

** **

This Work Letter (this **“Work Letter”**)****is incorporated into and made a part of the Lease. All termsnot defined herein shall have the meanings set forth in the Lease. In the eventof any conflict between the terms and provisions of the Lease and those of thisWork Letter, the terms and provisions of this Work Letter shall control, in allevents.

 

**1.                 Performanceof Work.**Landlordshall cause to be performed, in accordance with the terms of this Work Letter,(a) if Plan A is applicable, those certain Tenant Improvements depicted in theplans, specifications and working drawings described in **Schedule 1**attached hereto and made apart hereof (the **“Plan A Final Plans”**);****or (b) if Plan B is applicable, thosecertain Tenant Improvements depicted in the plans, specifications and workingdrawings described in Schedule 2 attached hereto and made a part hereof(the **“Plan B Final Plans;”**referencesto the Final Plans shall mean the Plan A Final Plans or the Plan B Final Plans,as applicable). All Tenant Improvements shall be performed in a good andworkmanlike manner, using new first grade quality materials. Landlord shall beresponsible to obtain all necessary governmental and municipal approvals andpermits required as a condition precedent to the performance and installationof the Tenant Improvements, and all costs and expenses incurred by Landlordpursuant to this sentence shall be deemed to constitute Work Cost, as definedbelow. The Final Plans have been prepared by LHB Architects (**“Architect”**). All work required for theconstruction and installation of the Tenant Improvements (**“Work”**)****shallbe performed only by Landlord’s contractor (the **“Contractor”**).****Landlordshall select the Contractor. Landlord shall obtain bids from three (3)contractors who are able to perform the Work. Tenant shall, in its sole, butreasonable, discretion and with the assistance and approval of Landlord, selectthe Contractor based on the bid price, quality of service, delivery date andprior working relationship with Tenant. Landlord shall use its good faithefforts to cause the Landlord Improvements to be substantially completed withinninety (90) days after the date on which the Work commences (the **“Scheduled Commencement Date”**).****The costs to construct the TenantImprovements, including, but not limited to, the cost to prepare the FinalPlans (collectively, the **“Work Cost”**),****shall be paid for by Landlord (except asotherwise specifically set forth below): provided, however, that in no eventshall Landlord be obligated to pay a Work Cost in excess of the Allowance, and,to the extent the Work Cost exceeds the Allowance, Tenant shall be solelyresponsible for (and, if necessary, promptly reimburse Landlord for) any suchexcess amount (**“Excess Work Cost”**).For purposes of the Lease, any Excess Work Cost shall constitute AdditionalRent.

 

**2. **               **Change Orders.**From time to time afterthe date of the Amendment, Tenant may notify Landlord of changes that Tenantproposes be made to the Final Plans (a **“ChangeOrder”**). Promptly upon Tenant’s delivery to Landlord of a ChangeOrder, Landlord shall notify Tenant (**“ChangeOrder Notice”**)****of both:(i) any estimated increase in the Work Cost due to the Change Order, and (ii)any estimated delay (an **“Estimated Delay”**)****in the Scheduled Commencement Date if theChange Order is implemented. Tenant shall notify Landlord of its final approvalor disapproval of the Change Order within two (2) business days after Landlorddelivers to Tenant the applicable Change Order Notice (**“Change Order Response Period”**).****If Tenant fails to timely notify Landlordof its approval or disapproval of any proposed Change

 

D-1

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Order, Tenant shall bedeemed to have automatically disapproved that particular Change Order andLandlord shall not proceed to implement any of the changes specified therein.If Tenant timely notifies Landlord of its approval of the Change Order, thenthe cost of such Change Order shall be added to the Work Cost and paid for fromthe Allowance, to the extent that Allowance proceeds are available; however, asprovided above, Tenant remains solely responsible for any Excess Work Cost. Insuch event, any delay in the Scheduled Commencement Date resulting from theperformance of the work described in the relevant Change Order shall be deemeda Delay Event (defined below).

 

**3.                 Substitutions.**From time to timeafter the date of the Lease, Landlord may notify Tenant of any proposedsubstitutions (**“Substitutions”**)****in the materials or designs described inthe Final Plans that Landlord determines are reasonably necessary to avoiddelays in the Scheduled Commencement Date (a **“SubstitutionNotice”**)**.**TheSubstitutions shall be of substantially the same character and quality as thosedescribed in the Final Plans. Any Substitution Notice shall describe inreasonable detail: (i) the nature of the Substitutions, (ii) any estimatedincrease in the Work Cost, if Tenant approves the Substitutions, and (iii) anyestimated delay in the Scheduled Commencement Date if Tenant disapproves theSubstitutions. Tenant shall notify Landlord of its approval or disapproval ofthe Substitutions within three (3) business days after Landlord delivers therelevant Substitution Notice to Tenant (**“SubstitutionResponse Period”**)**.**IfTenant fails timely to notify Landlord of its approval or disapproval, Tenantshall be deemed to have automatically disapproved the Substitutions describedin the relevant Substitution Notice. If Tenant disapproves or is deemed to havedisapproved the Substitutions, Landlord shall not implement the Substitutionsand any delay in the Scheduled Commencement Date resulting therefrom shall bedeemed a Delay Event. If Tenant timely approves a Substitution, then, withinthree (3) business days of the expiration of the relevant Substitution ResponsePeriod, Tenant shall pay Landlord the amount of any increase in the Work Cost(as set forth in the relevant Substitution Notice) in accordance with Paragraph4 of this Work Letter, and upon receipt of such payment, Landlord shallimplement the Substitutions.

 

**4.                 Paymentof Additional Work Cost.**As provided above, Tenant shall be responsible for the payment of anyincrease in the Work Cost resulting from an approved Change Order orSubstitution if the cost of such Change Order(s) and/or Substitution(s) exceedsthe amount of the Allowance and, therefore, constitutes Excess Work Cost.

 

**5.                 SubstantialCompletion Date and Punch List Items.**The Architect shall determine the date onwhich the construction and installation of the Work Items are substantiallycompleted in substantial accordance with the Final Plans, as such Final Plansmay be modified by any Change Orders and Substitutions (**“Substantial Completion Date”**)**.**The Architect shall certify to Landlordand Tenant, in writing, the Substantial Completion Date (**“Substantial Completion Notice”**)**.**Within five (5) days after the Architectdelivers the Substantial Completion Notice, Tenant and Landlord (and theArchitect, if Landlord so desires) shall inspect the Premises to determinethose items, if any, that Landlord and Tenant determine to be unfinished, butwhich do not materially impair Tenant’s use or occupancy of the Premises (the **“Punch List Items”**)**.**Tenant shall accept possession of theTenant Improvements and Landlord shall promptly thereafter complete the PunchList Items, it being understood that Landlord shall use reasonable efforts toso complete those Punch List Items within forty-live (45) days after the

 

D-2

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Substantial Completion Date.At Landlord’s request from time to time, Tenant will furnish Landlord withwritten statements acknowledging the completion of the Punch List Items. Anydisputes as to the nature or existence of any Punch List Item or as to thesubstantial completion of the Landlord Improvements shall be resolved byreasonable and joint decision of the Architect and a duly licensed Minnesota architectselected by Tenant.

 

**6.****                       ****Delay****.**

 

**6.1.     Delay Events:** The Scheduled Commencement Date may bedelayed from time to time due to any or all of the following events(collectively, **“Delay Events”)**:

 

**6.1.1.  **Change Orders requested or approved by Tenant;

 

**6.1.2.**   Tenant’s disapproval of a Substitution;

 

**6.1.3.**   Any act of Tenant or its agents, employees orcontractors that interferes with the Work;

 

**6.1.4.**   Any delay due to, or in connection with,materials specified by Tenant to be procured from a particular source,including, without limitation, any delivery delays or delays relating to thequality or other characteristics of such materials;

 

**6.1.5.**   Any delay of any applicable governmentalauthority to issue appropriate permits for construction of the LandlordImprovements and a certificate of occupancy (or comparable certification) forthe Premises upon substantial completion of the Work Items; and

 

**6.1.6.**   A matter arising or occurring under Section17.4 of the Lease.

 

**7. **               **Limit on Landlord’s Liability.**Withoutlimitation of Landlord’s limitation of liability set forth in the Lease,Landlord shall not be liable for any damage caused to Tenant due to a delay asa result of a Delay Event in the delivery of the Tenant Improvements to Tenant.

 

D-3

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**SCHEDULE 1**

** **

**FINAL PLANS**

 

Schedule 1

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**EXHIBIT A**

** **

**Option A - Preliminary**

** **

****

 
|   | Initials: |
|--------|-----------|
|   |      |
|   | Landlord: | [ILLEGIBLE] |
|   | Tenant:   |  [ILLEGIBLE] |
|        |           |  |  |

 

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**EXHIBIT B**

**Option B- Preliminary**

** **

****

 
|   | Initials: |
|--------|-----------|
|   |      |
|   | Landlord: | [ILLEGIBLE] |
|   | Tenant:   |  [ILLEGIBLE] |
|        |           |  |  |

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