**EXHIBIT 10.16.1**

 

**AMENDMENT TO LEASE**

 

This Amendment to Lease(“Amendment”) is made effective as of the 28th day of APRIL, 2005,by and between PARKSIDE SALT LAKE CORPORATION, a Delaware corporation(“Landlord”) and ESCHELON TELECOM, INC., a Delaware corporation (“Tenant”) withreference to the following facts and circumstances.

 

A.       Landlord is the Owner of that certainbuilding located at 215 South State Street, Salt Lake City, Utah 84111 (the“Property”).

 

B.        Landlord’s predecessor-in-interest andTenant’s predecessor-in-interest entered into a certain Office Lease, datedDecember 28, 1999, as amended by that certain Landlord’s Waiver and Consentdated August 25, 2000 (collectively, the “Lease”) for certain premisesdescribed as Suite 380 (the “Premises”) located in the Property.

 

C.        American Realty Advisors (“Advisor”) is thereal estate investment manager to the Landlord.

 

D.       Landlord and Tenant desire to amend the Leaseupon terms and conditions hereinafter set forth.

 

NOW, THEREFORE, inconsideration of the foregoing facts and circumstances, the mutual covenantsand promises contained herein and after good and valuable consideration, thereceipt and sufficiency of which is acknowledged by each of the parties, theparties do hereby agree to the following:

 

1.        Definitions. Each capitalized term used in this Amendment shall have the samemeaning as is ascribed to such capitalized term in the Lease, unless otherwiseprovided for herein.

 

2.        Expansion Premises. Commencing on July 15, 2005 (the “ExpansionDate”), the Premises shall be expanded to include an additional 11,925 rentablesquare feet in Suites 280 and 110, as shown on Exhibit A, attached (the“Expansion Premises”). Following the Expansion Date, the Premises shall consistof 18,669 rentable square feet.

 

3.        Term. The term of the Lease is hereby extended for the period commencing onthe Expansion Date and ending on July 14, 2012 (the “Extension Period”). Tenantacknowledges and agrees that, unless expressly provided for in this Amendment,Tenant has no right to renew or extend the term after the Extension Period.

 

4.        Rental. The Basic Annual Rent for the Extension Period shall be as follows:

 

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| **Suite  Number** | ** ** | **Total  Rentable  Square  Feet** | ** ** | **Months**      | ** ** | **Annual Base  Rent per  Square Foot** | ** ** | **Monthly  Base Rent** | ** ** | **Annual Base  Rent** | ** ** |
|-------------------|------------|-----------------------------------|------------|-----------------|------------|----------------------------------------|------------|------------------------|------------|-----------------------|------------|
| 110               |       | 1,150                             |       | 7/15/05-7/14/06 |       | $                                      | 12.50      |                   | $          | 1,197.92              |       | $ | 14,375.00 |   |
|              |       |                              |       | 7/15/06-7/14/07 |       | $                                      | 12.88      |                   | $          | 1,234.33              |       | $ | 14,812.00 |   |
|              |       |                              |       | 7/15/07-7/14/08 |       | $                                      | 13.27      |                   | $          | 1,271.71              |       | $ | 15,260.50 |   |
|              |       |                              |       | 7/15/08-7/14/09 |       | $                                      | 13.67      |                   | $          | 1,310.04              |       | $ | 15,720.50 |   |
|              |       |                              |       | 7/15/09-7/14/10 |       | $                                      | 14.08      |                   | $          | 1,349.33              |       | $ | 16,192.00 |   |
|              |       |                              |       | 7/15/10-7/14/11 |       | $                                      | 14.50      |                   | $          | 1,389.58              |       | $ | 16,675.00 |   |
|              |       |                              |       | 7/15/11-7/14/12 |       | $                                      | 14.94      |                   | $          | 1,431.75              |       | $ | 17,181.00 |   |
| 280               |       | 10,775                            |       | 7/15/05-7/14/06 |       | $                                      | 15.75      |                   | $          | 14,142.19             |       | $ | 169,706.25 |   |
|              |       |                              |       | 7/15/06-7/14/07 |       | $                                      | 16.22      |                   | $          | 14,564.21             |       | $ | 174,770.50 |   |
|              |       |                              |       | 7/15/07-7/14/08 |       | $                                      | 16.71      |                   | $          | 15,004.19             |       | $ | 180,050.25 |   |
|              |       |                              |       | 7/15/08-7/14/09 |       | $                                      | 17.21      |                   | $          | 15,453.15             |       | $ | 185,437.75 |   |
|              |       |                              |       | 7/15/09-7/14/10 |       | $                                      | 17.73      |                   | $          | 15,920.06             |       | $ | 191,040.75 |   |
|              |       |                              |       | 7/15/10-7/14/11 |       | $                                      | 18.26      |                   | $          | 16,395.96             |       | $ | 196,751.50 |   |
|              |       |                              |       | 7/15/11-7/14/12 |       | $                                      | 18.81      |                   | $          | 16,889.81             |       | $ | 202,677.75 |   |
| 380               |       | 6,744                             |       | 7/15/05-7/14/12 |       | $                                      | 19.00      |                   | $          | 10,678.00             |       | $ | 128,136.00 |   |

 

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5.        Conditional Rent. Provided that Tenant has faithfullyperformed all of the terms and conditions of the Lease and this Amendment,Landlord agrees to abate Tenant’s obligation to pay Basic Annual Rent on Suites105 and 280 for July 15, 2005 through March 14, 2006 (the “Conditional Rent”).Notwithstanding the foregoing, however, during such abatement period. Tenantshall still be responsible for the payment of all Additional Rent payable underthis Lease. In the event of a default at any time during the Term, in additionto any other remedies to which Landlord may be entitled, Landlord shall beentitled to recover the Conditional Rent (i.e., the amount of the ConditionalRent shall not be deemed to have been abated, but shall become immediately dueand payable as unpaid Rent earned, but due at the time of such default).

 

6.        Additional Rent. Throughout the Extension Period, Tenant’sShare for the calculation of Operating Expenses, payable as Additional Rentsubject to the provisions of this Section 6, shall be 9.82%. Additionally, theBase Year throughout the Extension Period shall be the 2005 calendar year andfor the purpose of calculating Tenant’s Additional Rent, Controllable OperatingCosts shall not increase by more than four percent (4%) per year in theaggregate over the Term. “Controllable Operating Costs” shall mean OperatingExpenses other than insurance, utilities and security.

 

7.        Parking. Notwithstanding anything in the Lease to the contrary, during theExtension Period Tenant shall have the right to use four (4) covered reservedparking spaces at a rate of $85.00 per space per month in locations designatedby Landlord, twenty (20) covered unreserved parking spaces at a rate of $65.00per space per month in locations designated by Landlord, fifteen (15)unreserved spaces on the surface lot adjacent to the Building at a rate of$18.00 per space per month, and one (1) reserved space in the Buildingcontractor lot at no charge to Tenant. Notwithstanding the foregoing, Tenant’sobligation to pay rent for the parking spaces shall be abated for July 15, 2005through July 14, 2006.

 

8.        Automatic Expansion. Provided no default has occurred, Tenantshall, once such space becomes available, expand into approximately 1,000additional contiguous rentable square feet on the first (lst) floorof the Building, in a location selected by Landlord from the expansion areasshown on Exhibit A attached hereto (the “Expansion Space”). Tenant shalltake the Expansion Space subject to all of the same terms and conditions of theLease, including, but not limited to, the then current rental rate.Additionally, Landlord hereby agrees to make improvements in the ExpansionSpace so that the Expansion Space shall be in the same condition as thePremises upon the date Tenant expands into the Expansion Space. Tenant shallexpand into the Expansion Space upon substantial completion of Landlord’simprovement work in the Expansion Space and both parties shall execute anamendment to the Lease setting forth the terms of the expansion.

 

Any termination of the Leaseshall terminate all rights of Tenant with respect to the Expansion Space. Therights of Tenant with respect to the Expansion Space shall not be severablefrom the Lease, nor may such rights be assigned or otherwise conveyed inconnection with any permitted assignment of the Lease. Landlord’s consent toany assignment of the Lease shall not be construed as allowing an assignment ora conveyance of such rights to any assignee.

 

The Lease shall not be voidor voidable, nor shall Landlord be liable to Tenant for any loss or damageresulting from any delay in delivering possession of the Expansion Space toTenant, but abatement of the Basic Annual Rental attributable to the ExpansionSpace from the

 

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date of Tenant’s automaticexpansion to the date of actual delivery of the Expansion Space, shallconstitute full settlement of all claims that Tenant might have againstLandlord by reason of the Expansion Space not being delivered upon the date ofTenant’s acceptance of Landlord’s offer.

 

If the Lease or Tenant’sright to possession of the Premises shall terminate in any manner whatsoeverbefore Tenant shall exercise the right herein provided, or if Tenant shall havesubleased the Premises or assigned the Lease with respect to all or any portionof the Premises, then immediately upon such termination, sublease, orassignment, the right herein granted shall simultaneously terminate and becomenull and void. Such right is personal to Tenant and non-transferable. UNDER NOCIRCUMSTANCES WHATSOEVER SHALL THE ASSIGNEE UNDER A COMPLETE OR PARTIALASSIGNMENT OF THE LEASE, OR A SUBTENANT UNDER A SUBLEASE OF THE PREMISES, HAVEANY RIGHT TO EXERCISE THE RIGHT GRANTED HEREIN.

 

9.        Cancellation Option.     Provided no default has occurred and Tenanthas given notice on or before December 14, 2009 (the “Notice Deadline”), Tenantshall have the option to cancel its obligations under this Lease effective asof June 14, 2010 by making a payment to Landlord upon the exercise of thecancellation option equal to the sum of (a) Landlord’s unamortized deal costs(i.e. leasehold improvements, commissions, etc.) associated with this Amendmentbased upon an interest rate of ten percent (10%) per annum, with suchamortization commencing after (i) the date any Conditional Rent has ceased(with respect to the initial costs incurred by Landlord); and (ii) the date anysuch costs are incurred by Landlord (if Tenant has expanded the Premises priorto such termination) plus (b) $57,051.84 (collectively the “Termination Fee”).

 

10.      Renewal Option.

 

a.         Tenant shall have one (1) personal andnon-transferable option to renew the term of the Lease for a period of five (5)years. The renewal term shall begin June 15, 2012. Tenant shall have the rightto exercise the renewal option conferred herein by giving Landlord notice atleast one hundred eighty (180) days, but not more than two hundred seventy(270) days, prior to the expiration of the Extension Period; provided that, atthe time of exercise and as of the commencement of the renewal term (i) nodefault has occurred; and (ii) Tenant has not sublet any portion of thePremises or assigned all or any portion of the Lease.

 

b.        The renewal option shall be subject to all ofthe terms and conditions contained in the Lease, except that rent during eachrenewal term shall be Market Rent. “Market Rent” shall be the anticipated ratein effect for the Premises as of the commencement of the renewal term, togetherwith any market rate increases during the renewal term, based upon the rentsgenerally in effect for new leases of space in the area in which the buildingis located of equivalent quality, size, utility and location, and taking intoaccount the length of the renewal term and the credit standing of Tenant. In noevent shall the Market Rent be less than the rent in effect for the immediatelypreceding term. Landlord shall lease the Premises to Tenant in theirthen-current condition, and Landlord shall not provide to Tenant any allowances(e.g., moving allowance, construction allowance, free rent or the like) orother tenant inducements, except Landlord shall provide a refurbishment

 

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allowance of $5.00 perrentable square foot. In**theevent that Tenant shall exercise an option to renew the Lease, then the MarketRent shall be agreed upon in a meeting of the parties hereto held at leastninety (90) days prior to the expiration of the Extension Period. If theparties are able to agree on an amount of rent that is mutually satisfactory,then such agreements shall be placed in writing and shall be signed by theparties hereto and shall thereupon become a part of the Lease.

 

c.         If the parties hereto are unable to agreeupon the rent at least thirty (30) days prior to the commencement of therenewal term, then the disagreement shall be promptly submitted to arbitrationas provided below.

 

d.        Failure of Tenant properly to exercise anyoption herein granted shall be construed as a waiver of all options hereingranted, and the Lease shall then terminate at the expiration of the ExtensionPeriod.

 

e.         If the parties do not agree upon the MarketRent within the stipulated time, no later than five (5) business days followingthe expiration of the stipulated time, each party shall select an arbitratorhaving not less than ten (10) years’ actual experience in the commercial realestate brokerage business, and the arbitrators so selected shall immediatelymeet for the purpose of hearing and deciding the dispute and fixing therelevant rate of rent. If the two arbitrators selected cannot agree on therental rate within ten (10) business days after appointment (the “InitialReview Period”), but the rental rates differ by less than five percent (5%), therental rate shall be the average of the two rates. If the rental rates differby more than five percent (5%), no later than five (5) business days followingthe expiration of the Initial Review Period, the two arbitrators shall select athird arbitrator with qualifications similar to their own. Within ten (10)business days following appointment, the third arbitrator shall select one ofthe two rental rates promulgated by the first two arbitrators as the rentalrate for the renewal period. If the arbitrators cannot agree on the thirdarbitrator, they shall petition the presiding judge of the local state courthaving jurisdiction to appoint such arbitrator to act as an umpire between thearbitrators selected by Landlord and Tenant. The decision of the third arbitratoror presiding judge, as the case may be, shall be binding on both parties.Landlord and Tenant shall each be responsible to pay their respectivearbitrators and will share equally the cost of the third arbitrator.

 

f.         Except as expressly set forth herein, Tenantshall have no option to renew the Lease.

 

11.                  Signage. Landlord shall pay all costs of fabrication and installation ofBuilding standard letters with Tenant name and suite number at the mainentrance to the Premises and one (1) line on the Building directory to displayTenant’s name and location in the Building. Any changes to the signageinitially provided by Landlord shall be at Tenant’s expense. Additionally,Tenant may install, at Tenant’s sole cost and expense, Building signage similarto the Building signage presently installed by Fidelity Investments, providedTenant has obtained Landlord’s prior written consent to such signage.

 

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12.               Building Services. Landlord hereby agrees to provide Tenant,upon Tenant’s written request, with up to twenty (20) hours per month duringthe Extension Period of HVAC services during hours not listed in Section 9.1 ofthe Lease at no charge. Any additional HVAC service requested by Tenant beyondthe twenty (20) hours listed herein shall be at Landlord’s standard rate forsuch after-hours service.

 

13.               Tenant Improvements. Landlord hereby agrees to construct theTenant Improvements enumerated in Exhibit B attached hereto.

 

14.               No Defenses. Tenant and Landlord affirm that, as of the date of execution of thisAmendment, no default or breach by Landlord or Tenant exists under the Leaseand Tenant and Landlord have no defenses, offsets or counterclaims that couldbe asserted in an action by Landlord or Tenant to enforce Landlord’s orTenant’s remedies under the Lease.

 

15.               Broker. Tenant represents to Landlord that except for Strategic CommercialRealty (the “Broker”), Tenant has not dealt with any real estate broker,salesperson or finder in connection with this Amendment, and no other suchperson initiated or participated in the negotiation of this Amendment or isentitled to any commission in connection herewith. Tenant hereby agrees toindemnify, defend and hold Landlord, its property manager and their respectiveemployees harmless from and against any and all liabilities, claims, demands,actions, damages, costs and expenses (including attorneys fees) arising fromeither (a) a claim for a fee or commission made by any broker [, other than theBroker,] claiming to have acted by or on behalf of Tenant in connection withthis Amendment, or (b) a claim of, or right to lien under the statutes of thestate in which the Premises are located (the “State”) relating to real estatebroker liens with respect to any such broker retained by Tenant.

 

16.               Submission. Submission of this Amendment by Landlord to Tenant for examinationand/or execution shall not in any manner bind Landlord and no obligations onLandlord shall arise under this Amendment unless and until this Amendment isfully signed and delivered by Landlord and Tenant; provided, however, theexecution and delivery by Tenant of this Amendment to Landlord shall constitutean irrevocable offer by Tenant of the terms and conditions herein contained,which offer may not be revoked for thirty (30) days after such delivery.

 

17.               Limit of Liability. Neither Landlord nor any principal ofLandlord nor any owner of the Property, whether disclosed or undisclosed, shallhave any personal liability with respect to any of the provisions of the Lease,as hereby amended, or the Premises, and if Landlord is in breach or defaultwith respect to Landlord’s obligations under the Lease, as hereby amended, orotherwise, Tenant shall look solely to the equity interest of Landlord in theProperty for the satisfaction of Tenant’s remedies or judgments.

 

18.                 Miscellaneous.

 

a.         Notices. Both parties confirmtheir notice addresses to be us follows

 
|   | If to Landlord: Parkside Salt Lake Corporation |
|--------|------------------------------------------------|
|   |                                           | c/o American Realty  Advisors  801 North Brand Boulevard, Suite 800 |

 

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|   |          | Glendale, CA 91203   Attention: Stanley lezman   Telecopy: 818-545-8460 |                                                                                                      |
|--------|---------------|-------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------|
|   |          |                                                                    |                                                                                                      |
|   | If to Tenant: |                                                                    | Eschelon Telecom, Inc.  730 Second Avenue South, Suite 900  Minneapolis, MN 55402  Telecopy: 612.436.6702 |   |
|        |               |                                                                         |                                                                                                           |  |  |

 

b.        Time of Essence. Time is of the essence of this Amendmentand each and every turn and provision hereof.

 

c.         Modification. A modification of any provision hereincontained, or any other amendment to this Amendment, shall be effective only ifthe modification or amendment is in writing and signed by both Landlord andTenant.

 

d.        Successors and Assigns. This Amendment shall be binding upon andinure to the benefit of the parties hereto and their respective successors andpermitted assigns.

 

e.         Number and Gender. As used in this Amendment, the neuterincludes masculine and feminine, and the singular includes the plural.

 

f.         Governing Law. This Amendment shall be governed by,interpreted under and construed and enforced in accordance with the laws ofUtah applicable to agreements made and to be performed wholly within Utah.

 

g.        Construction. Headings at the beginning of each Sectionand subsection are solely for the convenience of the parties and are not a partof this Amendment. Except as otherwise provided in this Amendment, all exhibitsreferred to herein are attached hereto and are incorporated herein by thisreference. Unless otherwise indicated, all references herein to Articles,Section, subsections, paragraphs, subparagraphs or provisions are to those inthis Amendment. Any reference to a paragraph or Section herein includes allsubparagraphs or subsections thereof. This Amendment shall not be construed asif it had been prepared by only Landlord or Tenant, but rather as if bothLandlord and Tenant had prepared the same. In the event any portion of thisAmendment shall be declared by any court of competent jurisdiction to beinvalid, illegal or unenforceable, such portion shall be deemed severed fromthis Amendment, and the remaining parts hereof shall remain in full force andeffect, as fully as though such invalid, illegal or unenforceable portion hadnever been part of this Amendment.

 

h.        Integration of Other Agreements. This Amendment, the Lease and prioramendments set forth the entire agreement and understanding of the parties withrespect to the matters set forth herein and supersedes all previous written ororal understandings, agreements, contracts, correspondence and documentationwith respect thereto. Any oral representation or modifications concerning thisAmendment shall be of no force or effect.

 

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i.          Duplicate Originals; Counterparts. This Amendment may be executed in anynumber of duplicate originals, all of which shall be of equal legal force andeffect. Additionally, this Amendment may be executed in counterparts, but shallbecome effective only after a counterpart hereof has been executed by eachparty; all said counterparts shall, when taken together, constitute the entiresingle agreement between parties.

 

j.          Days. The term “days,” as used herein shall mean actual days occurring,including Saturdays, Sundays and holidays. The term “business days” shall meandays other than Saturdays, Sundays and holidays. If any item must be accomplishedor delivered hereunder on a day that is not a business day, it shall be deemedto have been timely accomplished or delivered if accomplished or delivered onthe next following business day.

 

k.         Further Assurances. Landlord and Tenant each agree to executeany and all other documents and to take any further actions reasonablynecessary to consummate the transactions contemplated hereby.

 

l.          Joint and Several liability. If Tenant consists of two (2) or moreparties, each of such parties (and each of Tenant’s general partners) shall beliable for Tenant’s obligations under this Amendment, and all documentsexecuted in connection herewith, and the liability of such parties shall bejoint and several. Additionally, the obligations and liabilities hereunder ofthe general partners or other appropriate persons or entities that compriseTenant, if any, are and shall be joint and several.

 

m.        No Third Party Beneficiaries. Except as otherwise provided herein, noperson or entity shall be deemed to be a third party beneficiary hereof, andnothing in this Amendment, (either expressed or implied) is intended to conferupon any person or entity, other than Landlord and/or Tenant (and theirrespective nominees, successors and assigns), any rights, remedies, obligationsor liabilities under or by reason of this Amendment.

 

n.        Full Force and Effect. The Lease, as amended hereby, shallcontinue in full force and effect, subject to the terms and provisions thereofand hereof. In the event of any conflict between the terms of the Lease and theterms of this Amendment, the terms of this Amendment shall control.

 

o.        ERISA. Tenant has been informed that a specified pension plan may have aninterest in the Property. Tenant hereby represents and warrants that it is nota party in interest to such plan, within the meaning of Section 3(14) of theEmployee Retirement Income Security Act of 1974, as amended.

 

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IN WITNESS WHEREOF, thisAmendment is executed as of the day and year aforesaid.

 
|   | LANDLORD:                                                |
|--------|----------------------------------------------------------|
|   |                                                     |
|   | PARKSIDE SALT LAKE CORPORATION, a   Delaware corporation |
|   |                                                     |
|   | By:                                                      | /s/ David Coor |
|   | Printed Name:                                            |  David Coor |
|   | Title:                                                   | Asst. Manager |
|   | Date:                                                    | 4.28.05 |
|   |                                                     |   |
|   |                                                     |   |
|   | TENANT:                                                  |
|   | ESCHELON TELECOM, INC., a Delaware  corporation          |
|   |                                                     |
|   | By:                                                      | /s/ Michael A. Donahue |
|   | Printed Name:                                            | Michael A. Donahue |
|   | Title:                                                   | VP Finance and Treasurer |
|   | Date:                                                    | 4/28/05 |
|        |                                                          |  |  |  |  |

 

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**EXHIBIT A**

 

**The Expansion Premises**

** **

 

 

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**EXHIBIT B**

** **

**TENANT IMPROVEMENTS**

 

1.         Preparation of Working Drawings.

 

(a)       Landlord shall retain an architect/spaceplanner (“Architect”) to prepare the construction drawings for the TenantImprovements, along with an engineering consultant (“Engineer”) to prepare allplans and engineering working drawings related to the structural, mechanical,electrical, plumbing, HVAC, life-safety, and sprinkler work for the TenantImprovements.

 

(b)      Landlord shall prepare a space plan for theTenant Improvements that includes a layout and designation of all offices,rooms and other partitioning, their intended use, and equipment to be containedtherein (the “Space Plan”), and shall deliver the Space Plan to Tenant forTenant’s approval. Tenant shall notify Landlord whether it approves the SpacePlan within three (3) business days after Landlord’s submission thereof. IfTenant disapproves of such Space Plans, then Tenant shall notify Landlordthereof specifying in reasonable detail the reasons for such disapproval.Landlord shall revise such Space Plans in accordance with Tenant’s reasonableobjections and submit the revised Space Plans to Tenant for its review andapproval. Tenant shall notify Landlord in writing whether it approves of therevised Space Plans within two (2) business days after its receipt thereof. IfTenant fails to notify Landlord that it disapproves of the initial Space Planswithin three (3) business days (or, in the case of revised Space Plans, withintwo (2) business days) after the submission thereof, then Tenant shall bedeemed to have approved the Space Plans in question.

 

(c)       Following the date on which the Space Plansare approved (or deemed approved) by Tenant, Landlord shall cause the Architectand Engineer to prepare final working drawings of the Tenant Improvements anddeliver the same to Tenant for its review and approval (which approval shallnot be unreasonably withheld, delayed or conditioned). Tenant shall notifyLandlord whether it approves of the submitted working drawings within three (3)business days after Landlord’s submission thereof. If Tenant disapproves ofsuch working drawings, then Tenant shall notify Landlord thereof specifying inreasonable detail the reasons for such disapproval. Landlord shall revise suchworking drawings in accordance with Tenant’s objections and submit the revisedworking drawings to Tenant for its review and approval. Tenant shall notifyLandlord in writing whether it approves of the revised working drawings within two(2) business days after its receipt thereof. If Tenant fails to notify Landlordthat it disapproves of the initial working drawings within three (3) businessdays (or, in the case of resubmitted working drawings, within two (2) businessdays) after the submission thereof, then Tenant shall be deemed to have

 

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approved the workingdrawings in question. The approved working drawings arc hereinafter referred toas the “Approved Working Drawings.”

 

2.        Construction. Following approval of the Approved WorkingDrawings, Landlord shall construct the Tenant Improvements in substantialaccordance with the Approved Working Drawings.

 

3.        Warranties. Landlord shall use reasonable efforts to obtain a warranty from Landlord’scontractor against defects in materials and workmanship for one (l) yearfollowing substantial completion of the Tenant Improvements. Landlord herebyassigns to Tenant all warranties and guaranties by the contractor, and Tenanthereby waives all claims against Landlord relating to, or arising out of theconstruction of, the Tenant Improvements.

 

4.        Miscellaneous.

 

(a)       Provided the same will not interfere with theLandlord work, Landlord shall allow Tenant access to the Expansion Premisesthirty (30) days prior to the substantial completion of the Tenant Improvementsfor the purpose of installing Tenant’s equipment or fixtures (includingTenant’s data and telephone equipment) in the Expansion Premises. Additionally,Landlord shall provide Tenant an allowance up to $19,224.00, upon receivingcopies of paid receipts, to reimburse Tenant for moving expenses.

 

(b)       Unless otherwise indicated, all referencesherein to a “number of days” shall mean and refer to calendar days. If any itemrequiring approval is timely disapproved by Landlord, the procedure forpreparation of the document and approval thereof shall be repeated until thedocument is approved by Landlord.

 

(c)       Notwithstanding any provision to the contrarycontained in this Lease, if a default by Tenant has occurred at any time priorto substantial completion of the Tenant Improvements, then (i) in addition toall other rights and remedies granted to Landlord pursuant to this Lease,Landlord shall have the right to cause the contractor to cease the constructionof the Expansion Premises (in which case, Tenant shall be responsible for anydelay in substantial completion caused by such work stoppage); and (ii) allother obligations of Landlord under the terms of this Exhibit shall be forgivenuntil such time, if any, as such default may be cured.

 

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