Exhibit 10.14.1


 


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”) with reference to the following facts
and circumstances.


 


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


 


B.                                     Landlord’s
predecessor-in-interest and Tenant’s predecessor-in-interest entered into a
certain Office Lease, dated December 28, 1999, as amended by that certain
Landlord’s Waiver and Consent dated August 25, 2000 (collectively, the “Lease”)
for certain premises described as Suite 380 (the “Premises”) located in the
Property.


 


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


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


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


 


1.                                       Definitions. Each
capitalized term used in this Amendment shall have the same meaning as is
ascribed to such capitalized term in the Lease, unless otherwise provided for
herein.


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


 


3.                                       Term. The term of
the Lease is hereby extended for the period commencing on the Expansion Date
and ending on July 14, 2012 (the “Extension Period”). Tenant acknowledges 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:


 


	
  Suite

  Number



  	
   

  	
  Total

  Rentable

  Square

  Feet

  	
   

  	
  

  Months



  	
   

  	
  Annual
  Base

  Rent per

  Square Foot

  	
   

  	
  Monthly

  Base Rent

  	
   

  	
  Annual
  Base

  Rent

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


1





















 


	
  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/l1

  	
   

  	
  $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/l4/07

  	
   

  	
  $1622

  	
   

  	
  $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

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


2





















 


5.             Conditional
Rent.  Provided that Tenant has
faithfully performed 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 Suites 105 and 280 for July 15, 2005 through March 14, 2006 (the “Conditional
Rent”). Notwithstanding the foregoing, however, during such abatement period,
Tenant shall still be responsible for the payment of all Additional Rent
payable under this Lease. In the event of a default at any time during the
Term, in addition to any other remedies to which Landlord may be entitled,
Landlord shall be entitled to recover the Conditional Rent (i.e., the amount of
the Conditional Rent shall not be deemed to have been abated, but shall become
immediately due and payable as unpaid Rent earned, but due at the time of such
default).


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


7.             Parking.  Notwithstanding anything in the Lease to
the contrary, during the Extension Period Tenant shall have the right to use
four (4) covered reserved parking spaces at a rate of $85.00 per space per
month in locations designated by Landlord, twenty (20) covered unreserved
parking spaces at a rate of $65.00 per 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 Building contractor lot at no charge to Tenant. Notwithstanding the
foregoing, Tenant’s obligation to pay rent for the parking spaces shall be
abated for July 15, 2005 through July 14, 2006.


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


Any
termination of the Lease shall terminate all rights of Tenant with respect to
the Expansion Space. The rights of Tenant with respect to the Expansion Space
shall not be severable from the Lease, nor may such rights be assigned or
otherwise conveyed in connection with any permitted assignment of the Lease.
Landlord’s consent to any assignment of the Lease shall not be construed as
allowing an assignment or a conveyance of such rights to any assignee.


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


 


3





















date
of Tenant’s automatic expansion to the date of actual delivery of the Expansion
Space, shall constitute full settlement of all claims that Tenant might have
against Landlord by reason of the Expansion Space not being delivered upon the
date of Tenant’s acceptance of Landlord’s offer.


 


If
the Lease or Tenant’s right to possession of the Premises shall terminate in
any manner whatsoever before Tenant shall exercise the right herein provided,
or if Tenant shall have subleased the Premises or assigned the Lease with
respect to all or any portion of the Premises, then immediately upon such
termination, sublease, or assignment, the right herein granted shall
simultaneously terminate and become null and void. Such right is personal to
Tenant and non­transferable. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL THE
ASSIGNEE UNDER A COMPLETE OR PARTIAL ASSIGNMENT OF THE LEASE, OR A SUBTENANT
UNDER A SUBLEASE OF THE PREMISES, HAVE ANY RIGHT TO EXERCISE THE RIGHT GRANTED
HEREIN.


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


 


10.            Renewal Option.


a.             Tenant shall have one (1) personal
and non-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
right to exercise the renewal option conferred herein by giving Landlord notice
at least one hundred eighty (180) days, but not more than two hundred seventy
(270) days, prior to the expiration of the Extension Period; provided that, at
the time of exercise and as of the commencement of the renewal term (i) no
default has occurred; and (ii) Tenant has not sublet any portion of the
Premises or assigned all or any portion of the Lease.


 


b.             The renewal option shall be subject
to all of the terms and conditions contained in the Lease, except that rent
during each renewal term shall be Market Rent. “Market Rent” shall be the
anticipated rate in effect for the Premises as of the commencement of the
renewal term, together with any market rate increases during the renewal term,
based upon the rents generally in effect for new leases of space in the area in
which the building is located of equivalent quality, size, utility and
location, and taking into account the length of the renewal term and the credit
standing of Tenant. In no event shall the Market Rent be less than the rent in
effect for the immediately preceding term. Landlord shall lease the Premises to
Tenant in their then-current condition, and Landlord shall not provide to Tenant
any allowances (e.g., moving allowance, construction allowance, free rent or
the like) or other tenant inducements, except Landlord shall provide a
refurbishment


 


4





















 


                allowance of $5.00 per rentable
square foot. In the event that Tenant shall
exercise an option to renew the Lease, then the Market Rent shall be agreed
upon in a meeting of the parties hereto held at least ninety (90) days prior to
the expiration of the Extension Period. If the parties 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 the parties hereto and shall thereupon
become a part of the Lease.


 


c.             If the parties hereto are unable to
agree upon the rent at least thirty (30) days prior to the commencement of the
renewal term, then the disagreement shall be promptly submitted to arbitration
as provided below.


 


d.             Failure of Tenant properly to
exercise any option herein granted shall be construed as a waiver of all
options herein granted, and the Lease shall then terminate at the expiration of
the Extension Period.


 


e.             If the parties do not agree upon
the Market Rent within the stipulated time, no later than five (5) business
days following the expiration of the stipulated time, each party shall select
an arbitrator having not less than ten (10) years’ actual experience in the
commercial real estate brokerage business, and the arbitrators so selected
shall immediately meet for the purpose of hearing and deciding the dispute and
fixing the relevant rate of rent. If the two arbitrators selected cannot agree
on the rental rate within ten (10) business days after appointment (the “Initial
Review Period”), but the rental rates differ by less than five percent (5%),
the rental rate shall be the average of the two rates. If the rental rates
differ by more than five percent (5%), no later than five (5) business days
following the expiration of the Initial Review Period, the two arbitrators
shall select a third arbitrator with qualifications similar to their own.
Within ten (10) business days following appointment, the third arbitrator shall
select one of the two rental rates promulgated by the first two arbitrators as
the rental rate for the renewal period. If the arbitrators cannot agree on the
third arbitrator, they shall petition the presiding judge of the local state
court having jurisdiction to appoint such arbitrator to act as an umpire
between the arbitrators selected by Landlord and Tenant. The decision of the
third arbitrator or presiding judge, as the case may be, shall be binding on
both parties. Landlord and Tenant shall each be responsible to pay their
respective arbitrators and will share equally the cost of the third arbitrator.


 


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


 


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


 


5





















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


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


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


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


16.           Submission.  Submission of this Amendment by Landlord to
Tenant for examination and/or execution shall not in any manner bind Landlord
and no obligations on Landlord shall arise under this Amendment unless and
until this Amendment is fully signed and delivered by Landlord and Tenant;
provided, however, the execution and delivery by Tenant of this Amendment to
Landlord shall constitute an 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 of
Landlord nor any owner of the Property, whether disclosed or undisclosed, shall
have 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 default
with respect to Landlord’s obligations under the Lease, as hereby amended, or
otherwise, Tenant shall look solely to the equity interest of Landlord in the
Property for the satisfaction of Tenant’s remedies or judgments.


18.            Miscellaneous.


a.              Notices.  Both parties confirm their notice addresses to
be as follows.




	
   

  	
  If to Landlord:

  	
   

  	
  Parkside Salt Lake
  Corporation

  c/o American Realty Advisors

  801 North Brand Boulevard, Suite 800

  Glendale, CA 91203

  Attention: Stanley Iezman

  Telecopy: 818-545-8460

  






 


6





















 




	
   

  	
   

  	
   

  	
   

  
	
   

  	
  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 Amendment and each
and every term and provision hereof.


c.             Modification. A modification
of any provision herein contained, or any other amendment to this Amendment,
shall be effective only if the modification or amendment is in writing and
signed by both Landlord and Tenant.


 


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


 


e.                                       Number and
Gender. As used in this Amendment, the neuter includes 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 of Utah applicable to agreements made and to be
performed wholly within Utah.


 


g.             Construction. Headings at
the beginning of each Section and subsection are solely for the convenience of
the parties and are not a part of this Amendment. Except as otherwise provided
in this Amendment, all exhibits referred to herein are attached hereto and are
incorporated herein by this reference. Unless otherwise indicated, all
references herein to Articles, Section, subsections, paragraphs, subparagraphs
or provisions are to those in this Amendment. Any reference to a paragraph or
Section herein includes all subparagraphs or subsections thereof. This
Amendment shall not be construed as if it had been prepared by only Landlord or
Tenant, but rather as if both Landlord and Tenant had prepared the same. In the
event any portion of this Amendment shall be declared by any court of competent
jurisdiction to be invalid, illegal or unenforceable, such portion shall be
deemed severed from this Amendment, and the remaining parts hereof shall remain
in full force and effect, as fully as though such invalid, illegal or
unenforceable portion had never been part of this Amendment.


 


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


 


7





















i.              Duplicate Originals; Counterparts.  This Amendment may be executed in any  number of duplicate originals, all of
which shall be of equal legal force and effect. Additionally, this Amendment
may be executed in counterparts, but shall become effective only after a
counterpart hereof has been executed by each party; all said counterparts
shall, when taken together, constitute the entire single 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 mean days other than Saturdays, Sundays and holidays. If any item
must be accomplished or delivered hereunder on a day that is not a business
day, it shall be deemed to have been timely accomplished or delivered if
accomplished or delivered on the next following business day.


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


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


m.            No Third Party Beneficiaries. Except as otherwise provided herein, no
person or entity shall be deemed to be a third party beneficiary hereof, and
nothing in this Amendment, (either expressed or implied) is intended to confer
upon any person or entity, other than Landlord and/or Tenant (and their
respective nominees, successors and assigns), any rights, remedies, obligations
or liabilities under or by reason of this Amendment.


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


o.             ERISA.  Tenant
has been informed that a specified pension plan may have an interest in the
Property. Tenant hereby represents and warrants that it is not a party in
interest to such plan, within the meaning of Section 3(14) of the Employee
Retirement Income Security Act of 1974, as amended.


 


8





















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


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
   

  	
  PARKSIDE SALT LAKE
  CORPORATION, a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Cook

  
	
   

  	
   

  	
   

  
	
   

  	
  Printed Name:

  	
  David Cook

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Asset Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  April 28, 2005

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
  ESCHELON TELECOM, INC., a
  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael A. Donahue

  
	
   

  	
   

  	
   

  
	
   

  	
  Printed Name:

  	
  Michael A. Donahue

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  VP Finance & Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  April 28, 2005

  
							



 


 


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EXHIBIT B


TENANT IMPROVEMENTS


1.            Preparation of Working Drawings.


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


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


(c)           Following the date on which the Space
Plans are approved (or deemed approved) by Tenant, Landlord shall cause the
Architect and Engineer to prepare final working drawings of the Tenant
Improvements and deliver the same to Tenant for its review and approval (which
approval shall not be unreasonably withheld, delayed or conditioned). Tenant
shall notify Landlord whether it approves of the submitted working drawings
within three (3) business days after Landlord’s submission thereof. If Tenant
disapproves of such working drawings, then Tenant shall notify Landlord thereof
specifying in reasonable detail the reasons for such disapproval. Landlord
shall revise such working drawings in accordance with Tenant’s objections and
submit the revised working drawings to Tenant for its review and approval.
Tenant shall notify Landlord in writing whether it approves of the revised
working drawings within two (2) business days after its receipt thereof. If
Tenant fails to notify Landlord that it disapproves of the initial working
drawings within three (3) business days (or, in the case of resubmitted working
drawings, within two (2) business days) after the submission thereof, then
Tenant shall be deemed to have


 


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                approved the working drawings in
question. The approved working drawings are hereinafter referred to as the “Approved
Working Drawings.”


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


3.             Warranties. Landlord shall use reasonable efforts
to obtain a warranty from Landlord’s contractor against defects in materials
and workmanship for one (1) year following substantial completion of the Tenant
Improvements. Landlord hereby assigns to Tenant all warranties and guaranties
by the contractor, and Tenant hereby waives all claims against Landlord
relating to, or arising out of the construction of, the Tenant Improvements.


4.             Miscellaneous.


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


 


(b)           Unless
otherwise indicated, all references herein to a “number of days” shall mean and
refer to calendar days. If any item requiring approval is timely disapproved by
Landlord, the procedure for preparation of the document and approval thereof
shall be repeated until the document is approved by Landlord.


 


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


 


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