Exhibit 10.1
LEASE MODIFICATION AND EXTENSION
AGREEMENT
This Agreement
(“Agreement”), dated as of March 1, 2007, between
60 HUDSON OWNER LLC (successor to Hudson Telegraph
Associates, L.P., formerly known as Hudson Telegraph Associates), a
Delaware limited liability company, having an office c/o Williams
Real Estate Co. Inc., 380 Madison Avenue, New York, New York 10017
(“Landlord”), and FIBERNET EQUAL ACCESS, LLC, a
New York limited liability company, having offices at 570 Lexington
Avenue, New York, NY 10022 (“Tenant”).
W
I T N
E S S E T H
:
WHEREAS:
(A) Landlord and
Tenant are the current parties to an agreement of lease, dated as
of February 17, 1998, as amended by agreements dated as of
January 1, 2001, December 4, 2003 (“2003
Amendment”) and October 29, 2004 (as so amended, the
“Existing Lease”), pursuant to which Landlord presently
leases to Tenant and Tenant now leases from Landlord a portion of
the 19 th
floor,
(“Current Premises”) in Landlord’s building known
as 60 Hudson Street, New York, New York (“Building”),
the expiration date of which Existing Lease is currently
December 31, 2015 (“Expiration Date”), unless
sooner terminated as provided in the Existing Lease; and
(B) Landlord and
Tenant wish to amend the Existing Lease so as to: (i) lease to
Tenant the portions of the 12 th
floor,
basement and lower mezzanine at the Building indicated by hatching
on the drawings annexed hereto as Exhibits A, A-1 and A-2
(collectively, “New Premises”); and (ii) extend
the current Expiration Date for the Existing Lease until
July 31, 2022, both upon and subject to the terms and
conditions hereinafter set forth;
NOW, THEREFORE,
for good and valuable consideration,
the receipt and sufficiency of which hereby is acknowledged,
Landlord and Tenant agree as follows:
1. Definitions . The
capitalized terms contained in this Agreement shall, for the
purposes hereof, have the same meanings as are ascribed to them in
the Existing Lease, unless otherwise defined herein. As used
herein, the term “Lease” shall mean the Existing Lease,
as amended by this Agreement and as hereafter amended.
2. New Premises . Effective
as of the date of execution and exchange of this Agreement
(“New Commencement Date”), the term “demised
premises” whenever used in the Lease (including, without
limitation, Article 71 (Percentage Rent)) shall mean, collectively,
the Current Premises and the New Premises. The New Premises shall
be leased to Tenant in its “as is” condition on the New
Commencement Date and Landlord shall not be required to perform any
work or take any other action to prepare the New Premises for
Tenant’s occupancy. Landlord hereby consents to the existing
tenant of the New Premises continuing to utilize a portion thereof
for such period as is satisfactory to Tenant and such occupant, so
long as such use complies with all applicable provisions of the
Lease.
3. New Term . The Term for
the New Premises shall commence on the New Commencement Date and
expire on July 31, 2022 (“New Term”).
4. Terms and Conditions .
During the New Term, all terms and conditions of the Existing
Lease, as modified hereby, shall be applicable to and govern the
leasing of the New Premises.
5. Fixed Rent for New
Premises .
(A) The Fixed Rent
for the New Premises (which includes a two and one half (2
1 / 2 %) percent
cumulative increase in lieu of porter’s wage and/or operating
expense escalation) shall be as follows:
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Fixed Rent Per Annum
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New Commencement Date – February 29,
2008
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$
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678,900.00
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March 1, 2008 - February 28,
2009
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$
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695,872.50
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March 1, 2009 - February 28,
2010
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$
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713,269.31
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March 1, 2010 - February 28,
2011
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$
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731,101.05
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March 1, 2011 - February 29,
2012
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$
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749,378.57
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March 1, 2012 - February 28,
2013
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$
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814,504.53
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March 1, 2013 - February 28,
2014
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$
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834,867.15
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March 1, 2014 - February 28,
2015
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$
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855,738.83
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March 1, 2015 - February 29,
2016
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$
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877,132.30
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March 1, 2016 - February 28,
2017
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$
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899,060.60
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March 1, 2017 - February 28,
2018
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$
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967,928.62
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March 1, 2018 - February 28,
2019
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$
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992,126.83
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March 1, 2019 - February 29,
2020
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$
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1,016,930.00
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March 1, 2020 - February 28,
2021
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$
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1,042,353.25
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March 1, 2021 - February 28,
2022
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$
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1,068,412.08
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March 1, 2022 – July 31,
2022
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$
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1,095,122.38
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(B) Provided the Lease is in full
force and effect and Tenant is not in default thereunder beyond any
applicable notice and grace period, the Fixed Rent for the New
Premises shall abate completely for the first two months of the New
Term and shall abate by $28,287.50 for each of the ensuing six
months of the New Term.
(C) Notwithstanding anything to the
contrary contained herein, the Fixed Rent and additional rent for
the New Premises, as set forth in this Agreement, is in addition to
all Fixed Rent and additional rent currently and hereafter payable
by Tenant with respect to the Current Premises.
6. Modified and/or Deleted
Provisions .
The Lease is hereby modified to
provide that, in connection with the leasing of the New Premises
pursuant to this Agreement:
(A) “Base Tax Year”
shall mean calendar year 2007 and, therefore, “Base Year
Taxes” shall mean the average of the Real Estate Taxes as
finally determined for the tax fiscal years July 1, 2006 -
June 30, 2007 and J
