THIS SUBLEASE AGREEMENT (the “Sublease”) is entered into by and between ABOVENET COMMUNICATIONS, INC., a Delaware corporation (“Sublessor”), and SWITCH & DATA/NY FACILITIES COMPANY LLC, a Delaware limited liability company (“Sublessee” or “Switch & Data”).
A. Pursuant to that certain Purchase and Sale Agreement, dated November 6, 2002, by and among Switch and Data Facilities Company, Inc., (an affiliate of Switch & Data), Switch and Data Acquisition Company, Inc., (an affiliate of Switch & Data ), Metromedia Fiber Network, Inc. (“MFN”), Sublessee and PAIX.net, Inc., as amended from time to time, (the “Purchase Agreement”) the lease for the PAIX site located at 111 8th Avenue in New York, New York was to be assumed and amended by Switch & Data and 111 Chelsea LLC (“Landlord”) and Switch & Data executed a new lease agreement in accordance with the terms of the Stipulation of Settlement Between Debtors and 111 Chelsea LLC, and Metromedia Fiber Network Services, Inc. (“MFNS”) entered into a sublease, whereby MFNS sublet 3,855 square feet of rentable space (the “Interim Sublease”).
B. Pursuant to a certain Agreement of Lease, dated April 23, 1999, between MFNS and 111 Eighth Avenue LLC, predecessor in interest to Landlord (as such agreement of lease was modified and amended pursuant to that certain First Amendment to Lease, dated October 18, 2000, collectively, the “MFNS Lease”), MFNS leased the following space in the building located at 111 Eighth Avenue, New York, New York: (i) approximately 16,530 square feet of space on the 7th floor (the “7th Floor Space”) and (ii) approximately 14,592 square feet of space on the 12th floor (the “12th Floor Space”).
C. Simultaneously with the Interim Sublease, and pursuant to that Second Amendment of Lease and Partial Termination Agreement of even date by and between Landlord and MFN (parent of Sublessee), MFNS surrendered possession of approximately 10,617 square feet of the 7th Floor Space to Landlord (the “Surrendered Space”), and with the intent and purpose that the term of the MFNS Lease with respect to the Surrendered Space only shall be merged and extinguished.
D. Simultaneously with the Interim Sublease, and pursuant to that certain Agreement of Lease of same date by and between Landlord and Switch & Data (the “Interim Base Lease”), Switch & Data leased the Surrendered Space from the Landlord (the “Leased Premises”).
E. MFNS and MFN have emerged from bankruptcy as AboveNet Communications, Inc., and AboveNet, Inc., respectively, and, along with Switch & Data, desire to terminate the Interim Sublease and the Interim Base Lease and switch positions and replace the Interim
Sublease with this Sublease, and on even date herewith Sublessor shall enter into a new Base Lease with the Landlord by executing agreements virtually identical to the Interim Sublease and the Interim Base Lease but with the parties’ respective positions reversed and adjusted.
F. Sublessee desires to sublease from Sublessor and Sublessor desires to sublease to Sublessee the Subleased Premises (as hereinafter defined) subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration paid by each party hereto to the other, Sublessor and Sublessee agree as follows:
1. Terms. Capitalized terms used herein but not defined herein shall have the meanings specified in the Base Lease.
2. Sublease Grant.
(a) Agreement to Sublease. Sublessor subleases to Sublessee, and Sublessee subleases from Sublessor, a portion of the Leased Premises located on the 7th Floor of the Building (the “Subleased Premises”) in accordance with and subject to the Base Lease and the terms, conditions and provisions of this Sublease. Sublessor and Sublessee agree that the Subleased Premises consist of 6,762 rentable square feet of space. A floor plan depicting the Subleased Premises is attached hereto as Exhibit A.
(b) Related Rights. Sublessee shall have the following rights related to its use and enjoyment of the Subleased Premises, to the extent permitted under the Base Lease, but such rights shall always be subject to the terms and conditions of the Base Lease, the rules and regulations from time to time established by Landlord, and the right of Landlord to designate and change from time to time the areas and facilities to be so used:
(i) the Cabling Equipment of way and related rights described in Section 9.10 of the Base Lease (the “Conduit Rights”);
(ii) the right to heat as provided to Sublessor through the Building Heating System (as defined in the Base Lease) in the Subleased Premises pursuant to Section 9.3 of the Base Lease;
(iii) the non-exclusive right to use the elevators in the Building pursuant to Section 9.4 of the Base Lease;
(iv) the non-exclusive right to hot and cold water furnished by Landlord pursuant to Section 9.6 of the Base Lease; and
(v) the non-exclusive right to offer and provide Telecommunications Services (as defined in the Base Lease) pursuant to Section 9.11 of the Base Lease.
New York Sublease
(c) Appurtenant Rights. Sublessee shall have, as appurtenant to the Subleased Premises, the non-exclusive right to use all parking areas, driveways, sidewalks and other common facilities to the extent permitted under the Base Lease, but such rights shall always be subject to the terms and conditions of the Base Lease, the rules and regulations from time to time established by Landlord, and the right of Landlord to designate and change from time to time the areas and facilities to be so used.
3. Term. The term (the “Sublease Term”) of this Sublease shall commence on March 13, 2003 (the “Commencement Date”) and shall expire on September 29, 2014, unless earlier terminated pursuant to the terms of this Sublease.
(a) Sublessee agrees to pay to Sublessor, or as directed by Sublessor, commencing on the Commencement Date, without offset, abatement (except as provided herein), deduction or demand, as rent (the “Base Rental”) for the Subleased Premises, the following amounts for the following periods of time:
Monthly Base Rent:
Commencement Date - April 30, 2005
||Nineteen Thousand Seven Hundred Thirty Nine and 41/100 Dollars ($19,739.41) per month.|
May 1, 2005 - April 30, 2009
||Twenty One Thousand Four Hundred Thirty Five and 54/100 Dollars ($21,435.54) per month.|