Exhibit 10.40




THIRD
AMENDMENT TO LEASE

 

THIS
THIRD AMENDMENT TO LEASE (this
“Third
Amendment”) is
made and entered into as of the 11th day of February, 2005, by and between VISTA
HOLDINGS, LLC, a Nevada limited liability company (“Landlord”), and
MPOWER COMMUNICATIONS CORP., a Nevada corporation (“Tenant”).




WHEREAS,
Landlord, as assignee, and Tenant are parties to that certain Lease and related
Addendum dated as of May 1, 2000, as amended by that First Amendment to Lease
dated August 28, 2000, and that Second Amendment to Lease dated March 22, 2002
(collectively, the “Lease”);
and




WHEREAS,
Landlord and Tenant now desire to amend the Lease as provided
herein.




NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and for other good and valuable consideration, Landlord and Tenant agree
as follows:

 


	1.  	
      Section
      2.5 of the Lease is hereby amended in full to read as
    follows:




 

“2.5 EXPIRATION
DATE: June 30, 2006, unless otherwise terminated in accordance with the
provisions of this Lease.”

 


	2.  	
      Section
      2.7 of the Lease is hereby amended in full to read as
    follows:




 

“2.7 LANDLORD’S
ADDRESS FOR NOTICE:

 

Vista
Holdings, LLC

c/o
Station Casinos, Inc.

2411 W.
Sahara Avenue

Las
Vegas, Nevada 89102

Attention:
General Counsel




RENT
PAYMENT ADDRESS:




Equus
Management Corporation

3400 W.
Desert Inn Road, Suite 24

Las
Vegas, Nevada 89102




TENANT’S
MAILING ADDRESS:




Mpower
Communications

175
Sully’s Trail

Pittsford,
New York 14534

Attention:
Michael Tschiderer”





	3.  	
      The
      Lease is hereby amended by adding a new Section 6.9 to read as
      follows:







“6.9 Waiver
of Certain Rent Obligations.
Notwithstanding anything to the contrary contained in this Lease, Landlord
hereby waives its right to receive from Tenant all Base Rent and Additional Rent
that becomes due or payable hereunder after January 31, 2005 (collectively, the
“Waived Rent”).”





	4.  	
      The
      first sentence of Section 26 of the Lease is hereby amended to read as
      follows:




 

“Tenant
shall not occupy the Premises after the Expiration Date without the prior
written consent of Landlord, which consent may be withheld in Landlord’s sole
and absolute discretion. Tenant hereby acknowledges and agrees that irreparable
damage would occur in the event that this Section 26 of this Lease is not
performed by Tenant in accordance with its specific terms or is otherwise
breached by Tenant. It is accordingly agreed that Landlord shall be entitled to
an injunction or injunctions to prevent breaches of this Section 26 by Tenant
and to enforce specifically the terms and provisions this Section 26, this being
in addition to any other remedy to which Landlord is entitled at law or in
equity.”

 


	5.  	
      Section
      36.6 of the Lease is hereby amended in full to read as
      follows:




 

“36.6 Choice
of Law; Forum. This
Lease shall be construed and enforced in accordance with the Laws of the State.
Each party hereto consents to, and waives any objection to, Las Vegas, Nevada as
the proper and exclusive venue for any disputes arising out of or relating to
this Lease.”





	6.  	
      The
      Lease is hereby amended by adding a new Section 36.20 to read as
      follows:




 

“36.20 Early
Termination Payment. In
consideration of Tenant’s agreement to change the Expiration Date to June 30,
2006 (as provided in Section 26), Landlord agrees to pay to Tenant the sum of
$7,727,750 (the “Early
Termination Payment”). The
Early Termination Payment, which equals the difference between $8,000,000.00 and
the approximate value of the Waived Rent, shall be due and payable not later
than January 31, 2005. Additionally, in the event it is necessary for Tenant to
supply fiber optic cable to Tenant’s new location, Landlord shall reimburse
Tenant for the actual costs incurred by Tenant in connection therewith (the
“Fiber
Optic Cable Payment”);
provided, however, that the Fiber Optic Cable Payment shall in no event exceed
$500,000.00. To obtain the Fiber Optic Cable Payment, Tenant shall submit
written documentation to Landlord which sets forth in reasonable detail the
total amount of the actual costs incurred by Tenant in connection with supplying
fiber optic cable to Tenant’s new location, together with supporting materials
(i.e., invoices and receipts) with respect to such costs. The Fiber Optic Cable
Payment shall be due and payable within thirty (30) days following Landlord’s
receipt of such written documentation.”

 


	7.  	
      The
      Lease is hereby amended by adding a new Section 36.21 to read as
      follows:




 

“36.21 Guarantee
of Landlord’s Obligations. Station
Casinos, Inc., a Nevada corporation and sole member of Landlord, hereby, to the
fullest extent permitted under applicable law, irrevocably and unconditionally
guarantees to Tenant the prompt performance and payment in full when due of all
obligations of Landlord under this Lease and hereby agrees to take all
reasonably necessary action as the sole member of Landlord to cause Landlord to
perform its obligations under this Lease.”

 


	8.  	
      Capitalized
      terms not otherwise defined in this Third Amendment shall have the
      meanings set forth in the Lease.




 


	9.  	
      Except
      as expressly amended by this Third Amendment, all other terms and
      provisions of the Lease shall remain unaltered, are hereby reaffirmed, and
      shall continue in full force and effect.




 


	10.  	
      This
      Third Amendment may be executed in counterparts, each of which shall be
      deemed an original and all of which shall constitute one and the same
      document, with the same effect as if all parties had signed on the same
      page. Facsimile copies hereof and facsimile signatures thereon shall have
      the same force and effect as originals.




 

 

IN
WITNESS WHEREOF, the parties hereto have executed this Third Amendment as of the
date first written above.


 

 



	 	 	 
	 	VISTA HOLDINGS,
      LLC
	 
 	 
 	 
 
		By:  	/s/ Richard
  Haskins
	 	
      

      Richard Haskins
	 	Manager





 




	 	 	 
	 	MPOWER
      COMMUNICATIONS CORP.
	 
 	 
 	 
 
		By:  	/s/ Russell
    Zuckerman
	 	
      

      Russell Zuckerman
	 	Senior Vice President &
      General Counsel




 

 


FOR
PURPOSES OF SECTION 36.21 OF THE

LEASE
ONLY:




	 	 	 
	 	STATION CASINOS,
      INC.
	 
 	 
 	 
 
		By:  	/s/ Richard
  Haskins
	 	
      

      Richard Haskins
	 	Executive Vice
  President