Exhibit 10.82


 


LEASE MODIFICATION AND EXTENSION AGREEMENT


 


This Lease Modification and
Extension Agreement (“Agreement”), dated as of September 14,
2009, 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 FirstService Williams LLC, 380 Madison Avenue, New York, New York 10017-2513
(“Landlord”), and ABOVENET COMMUNICATIONS INC. (successor to F. Garofalo Electric Co., Inc. and National Fiber
Network Inc.), a Delaware corporation, having an address at 360 Hamilton Avenue, White Plains, New York 10601 (“Tenant”).


 


WITNESSETH:


 


WHEREAS:


 


A.           Landlord
presently leases to Tenant, pursuant to an agreement of lease, dated December 30, 1994, as thereafter amended (“Existing
Lease”), a portion of the 15th floor (“Existing Premises”) at Landlord’s building at 60 Hudson
Street, New York, New York (“Building”), for a term (“Present Term”) which is scheduled to expire on March
31, 2010, unless sooner terminated pursuant to the provisions of the Existing Lease; and


 


B.           Tenant
has timely and effectively exercised its first five year (“Renewal Term”) renewal option (“Initial Renewal Option”)
set forth in Section 66 of the Existing Lease (“Section 66”) and Landlord and Tenant have been seeking to determine,
pursuant to the provisions of Section 66, the Fixed Rent for the Renewal Term; and


 


C.           At
the same time as Landlord and Tenant have been proceeding as set forth in Paragraph B above, they have been negotiating the terms
and conditions for a fifteen year long term leasing of the Existing Premises and have agreed upon such terms and conditions.


 


NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants herein contained, Landlord and Tenant agree that the Existing Lease hereby
is amended as follows:


 


1.        
  Definitions, Tenant’s Representation and Parent’s Guaranty.


 


(A)         All
defined terms used herein shall have the same meanings as are ascribed to them in the Existing Lease. The Existing Lease, as modified
by this Agreement and as the same may be hereafter modified, is hereinafter sometimes collectively referred to as the “Current
Lease.”


 


(B)         As
an inducement to Landlord to accept AboveNet Communications Inc. as the Tenant under this Agreement, (i) Tenant hereby represents
and warrants to Landlord that Exhibit A annexed hereto accurately sets forth in all material respects the net income earned by
Tenant’s parent, AboveNet Inc. (“AboveNet Parent”) for calendar year 2008, and (ii) simultaneously herewith,
the AboveNet Parent is guarantying the performance of the Tenant’s obligations during the entire duration of the Current
Lease pursuant to the form annexed hereto as Exhibit B.


 


2.           Tenant’s
Sole Remaining Renewal Option. 


 


(A)         The
parties agree that their execution and exchange of this Agreement is deemed to constitute Tenant’s exercise of the Initial
Renewal Option, but only as modified and extended pursuant to the provisions of this Agreement.


 






    	 



    	 



    
  


(B)         Tenant
shall retain the second five year renewal option provided for in Section 66 (“Sole Remaining Option”), upon and subject
to the terms and conditions set forth in Section 66, except that Section 66 shall be revised as follows with respect to the Sole
Remaining Option:


 


(i)          The
Sole Remaining Option only shall be applicable to the entire Existing Premises which, if Tenant effectively exercises the Sole
Remaining Option, shall be leased by Landlord to Tenant in its “as is” condition on April 1, 2025 (without any work
contribution from Landlord) and otherwise upon and subject to all then applicable terms and conditions of the Current Lease, except
as otherwise set forth in this Paragraph 2;


 


(ii)         The
last date for Tenant to exercise the Sole Remaining Option shall be March 31, 2024, time being of the essence;


 


(iii)        The
2nd Extension Term (as defined in Section 66) shall be from April 1, 2025 – March 31, 2030;


 


(iv)        The
initial Fixed Rent payable by Tenant for the Existing Premises during the 2nd Extension Term (“Initial Option
Fixed Rent”) shall be the greater of (a) $806,543.00 per annum, or (b) the FMRV (as hereinafter defined) for the Existing
Premises as of March 31, 2025, which Initial Option Fixed Rent shall be increased as provided in subparagraph (vi) below (“Option
Fixed Rent”);


 


(v)         The
FMRV shall be the fair market rental value, as of March 31, 2025, of space comparable to the Existing Premises in lower Manhattan,
taking into account the special character of the Building as a telecommunications industry specialty building.


 


(vi)        On
each April 1 during the 2nd Extension Term, commencing with April 1, 2026, the Initial Option Fixed Rent (and commencing
on December 1, 2027, the applicable Option Fixed Rent) shall be increased by two (2%) percent of the applicable Option Fixed Rent
in effect on the immediately preceding March 31; and


 


(vii)       Tenant
shall have no further renewal option.


 


3.      
    Leasing of Existing Premises. Commencing on April 1, 2010
(“Effective Date”) and running through March 31, 2025 (“Extended Lease Term”), unless the Extended
Lease Term is terminated as provided pursuant to the Current Lease:


 


(A)         The
Current Lease shall continue to cover the Existing Premises;


 


(B)         The
Existing Premises may be used solely for the purposes permitted by Sections 2, 6, 43 and any other applicable provisions of the
Existing Lease;


 


(C)         The
Existing Premises shall be leased to Tenant in its “as is” condition on the Effective Date and Landlord shall not be
required to perform any work to prepare the Existing Premises for Tenant’s continued occupancy. The continued occupancy by
Tenant of the Existing Premises shall be conclusive evidence as against Tenant that, as of the Effective Date, the Existing Premises
was in good and satisfactory condition; and


 


(D)         During
the Extended Lease Term, the Existing Premises shall be leased to Tenant upon and subject to all terms and conditions of the Current
Lease, except as modified by this Paragraph 3.


 






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4.     
     Fixed Rent for the Existing Premises.


 


(A)         During
the Extended Lease Term, the Fixed Rent for the Existing Premises (which includes an annual two (2%) percent increase intended
to reimburse Landlord for anticipated increases in Building operating expenses, in lieu of operating expense escalation or so-called
porter’s wage and/or Building utility escalation) shall be as set forth in the following table: 


 


	Period	 	Fixed Rent 

Per Annum	 
	April 1, 2010 – March 31, 2011	 	$	522,600.00	 
	April 1, 2011 – March 31, 2012	 	$	533,052.00	 
	April 1, 2012 – March 31, 2013	 	$	543,713.00	 
	April 1, 2013 – March 31, 2014	 	$	554,587.00	 
	April 1, 2014 – March 31, 2015	 	$	565,679.00	 
	April 1, 2015 – March 31, 2016	 	$	621,414.00	 
	April 1, 2016 – March 31, 2017	 	$	633,842.00	 
	April 1, 2017 – March 31, 2018	 	$	646,519.00	 
	April 1, 2018 – March 31, 2019	 	$	659,449.00	 
	April 1, 2019 – March 31, 2020	 	$	672,638.00	 
	April 1, 2020 – March 31, 2021	 	$	730,512.00	 
	April 1, 2021 – March 31, 2022	 	$	745,122.00	 
	April 1, 2022 – March 31, 2023	 	$	760,024.00	 
	April 1, 2023 – March 31, 2024	 	$	775,224.00	 
	April 1, 2024 – March 31, 2025	 	$	790,728.00	 



 


(B)         The
Fixed Rent does not include additional rent payable for tax escalation and Tenant’s electrical consumption, conduits, Fuel
Riser Charges and POE Charges, which shall be payable as provided in the Existing Lease and/or this Agreement.


 


(C)         Tenant
has paid all amounts owing under the Existing Lease which have been invoiced to Tenant for the period through August 31, 2009,
except for items such as more recent submetered electric billing (for the period from and after July 30, 2009) and Building service
charges, which have not yet been invoiced to Tenant and will be paid by Tenant within twenty (20) days after being billed therefor.


 


5. 
         Changes to Existing Lease from and after
the Effective Date. From and after the Effective Date:


 


(A)         “Base
Tax Year,” for purposes of calculation of escalation on behalf of Real Estate Taxes, shall mean the calendar year 2009 (i.e.,
the average of the Real Estate Taxes for the tax fiscal years July 1, 2008 – June 30, 2009 and July 1, 2009 – June
30, 2010) and, therefore, “Base Year Taxes” shall mean the Real Estate Taxes as finally determined for the Base Tax
Year;


 






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(B)         “Subsequent
Tax Year” shall mean any tax fiscal year during the Extended Lease Term beginning on or after July 1, 2009;


 


(C)         Subsections
(E), (F), (G), (H) and (I) of Section 37 and Sections 40, 41, 45, 50, 51, 62 and 67 of the Existing Lease shall be of no force
and effect during the Extended Lease Term;


 


(D)         The
Security Deposit of $63,873.34 currently held by Landlord under the Existing Lease shall be immediately increased to $152,425.00,
and, as so increased, shall continue to be held and disbursed by Landlord upon and subject to the terms and conditions of Sections
34 and 60 of the Existing Lease. Simultaneously herewith, Tenant is delivering to Landlord $88,551.66, which shall be temporarily
held by Landlord (together with the existing Security Deposit) solely as the new increased Security Deposit, pending Tenant’s
delivery of the Letter of Credit hereinafter provided for. Within ninety (90) days after Tenant’s receipt of a duplicate
original of this Agreement, Tenant shall deliver to Landlord a Letter of Credit in the amount of $152,425.00 and complying with
the requirements of Section 60(A) of, and Exhibit B to, the Existing Lease (whereupon Landlord shall, within thirty (30) days after
receipt of such Letter of Credit, return to Tenant the entire cash Security Deposit then being held by Landlord); and


 


(E)         Section
51 of the Existing Lease is deleted in its entirety and the following is substituted therefor:


 


“51.         Insurance


 


During the Term, Tenant shall pay
for and keep in force general liability policies in standard form providing coverage on an occurrence basis including bodily injury
and property damage liability, personal injury liability, contractual liability and fire legal liability, all subject to common
terms and conditions. Such insurance is to be primary insurance, notwithstanding any insurance maintained by the indemnified parties,
shall cover the operations of Tenant and may contain commercially reasonable deductibles, but no other self-insurance. Such insurance
is to be secured with New York licensed insurers authorized to issue such policies and reasonably approved by Landlord (Landlord
hereby approving a New York licensed insurer which has a Best’s rating of A-VIII). The minimum limits of liability shall
be a combined single limit for bodily injury and property damage of not less than $3,000,000.00 per occurrence and annual aggregate
per location. All coverage required by this Section 51 may be satisfied by a combination of primary and excess policies of insurance.
If at any time during the Term it appears that public liability or property damage limits in the City of New York for buildings
similarly situated, due regard being given to the use and occupancy thereof, are higher than the foregoing limits, then Tenant
shall increase the foregoing limits accordingly. Landlord (and each member thereof in the event Landlord is a partnership, joint
venture or other entity) and Landlord’s managing agent (Landlord’s current managing agent is GVA Williams) shall be
named as additional insureds in the aforesaid insurance policies. Tenant shall also secure and keep in force “all risk”
property insurance covering all of its personal property, equipment, trade fixtures, goods, merchandise, furniture, furnishings
and other items removable by Tenant located in the premises for the full replacement value thereof from time to time. All such
policies shall provide that the insurer shall endeavor to deliver to Landlord not less than thirty (30) days’ prior notice
of cancellation, non-renewal or material change of or to said insurance. Tenant shall deliver ACORD 25 or 28, as appropriate, or
the nearest equivalent if any such form is discontinued or superseded, certificates of insurance evidencing such policies, including
the additional insureds as required above and reasonably satisfactory evidence of payment of premiums, if requested by Landlord.
Tenant shall supply renewal certificates as soon as practicable upon renewal. All premiums and charges for the aforesaid insurance
shall be paid by Tenant. If Tenant shall fail to maintain any such required insurance, or to pay the premiums therefor when due,
Landlord may obtain such insurance or make such payment and the cost thereof to Landlord shall be repaid to Landlord by Tenant
on demand as additional rent. Tenant shall not violate or permit to be violated any condition of any of said policies and Tenant
shall perform and satisfy the requirements of the companies writing such policies.”


 






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(F)         The
following shall be added as Section 68 to the Existing Lease:


 


“68.        Landmark
Designation 


 


Tenant is
hereby notified that the premises are subject to the jurisdiction of the Landmarks Preservation Commission. In accordance with
sections 25-305, 25-306, 25-309 and 25-310 of the Administrative Code of the City of New York and the rules set forth in Title
63 of the Rules of the City of New York, any demolition, construction, reconstruction, alteration or minor work as described in
such sections and such rules may not be commenced within or at the premises without the prior written approval of the Landmarks
Preservation Commission. Tenant is notified that such demolition, construction, reconstruction, alterations or minor work includes,
but is not limited to, (a) work to the exterior of the premises involving windows, signs, awnings, flagpoles, banners and storefront
alterations and (b) interior work to the premises that (i) requires a permit from the Department of Buildings or (ii) changes,
destroys or affects an interior architectural feature of an interior landmark or an exterior architectural feature of an improvement
that is a landmark or located on a landmark site or in a historic district.”


 






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6. 
         Fuel Riser Charges.


 


(A)         Landlord
has completed the installation of a Building emergency generator fuel system, consisting of a storage tank and accompanying controls
located in the subbasement of the Building (“Subbasement Fuel Tank”) and a fuel riser (“Fuel Riser”) connected
thereto (collectively, “Fuel Riser System”) which will enable Building tenants to receive fuel for the emergency generator
tanks located in their premises and Tenant wishes to connect to and utilize the Fuel Riser System for the Existing Premises, upon
and subject to the terms and conditions of the Existing Lease, as modified hereby. Except for maintenance, repairs and replacements
in and to the Fuel Riser System (collectively, “Repair Work”) necessitated by the negligence or improper conduct of
Tenant or any of its agents, employees, representatives, contractors, subcontractors, licensees or invitees (which Repair Work
shall be performed by Landlord, at Tenant’s expense, to be paid by Tenant to Landlord within twenty (20) days after Landlord
bills Tenant therefor), Landlord shall, at its expense perform all Repair Work.


 


(B)         Tenant
shall, in compliance with all applicable requirements of the Current Lease and with Landlord’s guidance and coordination
(collectively, “Landlord’s Coordination”), perform the Connection Work (as hereinafter defined) necessary to
connect its emergency generator tank within the Existing Premises (“Generator Tank”) to the Fuel Riser System.


 


(C)         Within
thirty (30) days hereafter, Tenant shall, as additional rent under the Lease:


 


(i)          Pay
Landlord $17,500.00, representing the agreed payment by Tenant to reimburse Landlord for Landlord’s Coordination;


 


(ii)         Pay
Landlord a one time tap in charge of $50,000.00 for the right to connect the Generator Tank to the Fuel Riser System; and


 


(iii)        Commence
payment to Landlord of an annual charge (“Annual Riser Charge”), until the expiration of the Extension Term and any
2nd Extension Term, of $25,000.00 (in equal monthly installments of $2,083.33), to reimburse Landlord for the costs
incurred for the storage of the fuel within the Subbasement Fuel Tank and the maintenance of the Subbasement Fuel Tank and the
Fuel Riser System.


 


In addition, Tenant shall also pay directly
to the supplier of the fuel it consumes for its Generator Tank such supplier’s charges for such fuel (without any additional
charge imposed by Landlord), as measured by meters to be installed as a part of the Connection Work, which also shall constitute
additional rent under the Lease. Landlord shall arrange for a supplier of its choosing to make timely deliveries of fuel to be
utilized for the operation of the Subbasement Generator Tank.


 






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Tenant shall, when
connecting its Generator Tank to the Fuel Riser System, pay all costs relating to the installation of all pipes, controls, meters
and other equipment necessary for such purpose (collectively, “Connection Work”) and shall utilize the engineer (Highland
Associates) and contractor (United Plumbing and Mechanical) designated by the Building for such purpose. Tenant
shall be responsible for obtaining approval from any other tenant or occupant of the Building (collectively, “Other Tenant”)
to enable Tenant to run its lateral piping constituting a part of the Connection Work (“Lateral
Piping”) through any Other Tenant’s space (“Other Space”), if necessary. Landlord shall assist Tenant’s
efforts to obtain any such approval in a reasonable manner. The parties acknowledge
that Landlord has arranged for Tenant to run the Lateral Piping through the space adjacent to the Existing Premises presently
leased to Light Tower Fiber Long Island, LLC ("Light Tower"). 
Landlord approves, in principle, such running of the Lateral Piping, provided the Lateral Piping is so run in compliance with
all applicable laws and all applicable provisions of the Current Lease. If the Lateral Piping is so run, the Other Space is hereafter
vacated and, by reason of such vacating, Tenant is required to relocate such run of the Lateral Piping, then (1) in the event
that Landlord agrees to reimburse Tenant for the reasonable costs of such relocation; or (2) in the even tthat the new tenant
or occupant of the Other Space pays Tenant the reasonable costs of such relocation, Tenant, in either event shall relocate the
lateral Piping to a new location mutually selected by Landlord and Tenant, both acting reasonably.


 


(D)         All
amounts payable pursuant to this Paragraph 6 are sometimes collectively referred to in this Agreement as the “Fuel Riser
Charges.”


 


(E)         Landlord
shall indemnify Tenant from and against all loss, damage, liability, cost and expense (including reasonable attorneys’ fees,
but specifically excluding any and all consequential damages of any nature) resulting solely from Landlord’s failure (other
than by reason of circumstances beyond Landlord’s control) to perform its obligations under this Paragraph 6 with respect
to the Subbasement Fuel Tank and/or the Fuel Riser System.


 


(F)         On
or before the expiration or sooner termination of the Current Lease, Tenant shall, at its expense, remove all elements of the Connection
Work, repair any resultant damage to the Existing Premises, the Building and/or the Fuel Riser System and restore the Existing
Premises to the condition in which the Existing Premises is required to be returned to Landlord at the end of the Current Lease.


 


(G)         Anything
in this Agreement to the contrary notwithstanding, provided, at any time from and after April 1, 2020, (i) Tenant gives Landlord
not less than thirty (30) days of its intention to disconnect its Generator from the Fuel Riser System (“Disconnection Work”),
and (ii) thereafter permanently completes, in compliance with all applicable provisions of the Current Lease, applicable law and
the requirements of all governmental authorities having jurisdiction and to Landlord’s reasonable satisfaction, all elements
of the Disconnection Work, then, commencing from and after such completion of the Disconnection Work, Tenant shall have no further
liability for any installments of the Annual Riser Charge thereafter accruing.


 


7.          Meet-Me-Room.


 


(A)         As
a material inducement to Landlord to enter into this Agreement, Tenant covenants, on behalf of itself and its successors and assigns,
that (x) it will not operate or hold itself out as operating a so-called “meet-me room,” carrier or telecom hotel,
or other similar type of interconnection facility for the telecommunications industry within all or any portion of the Premises;
and (y) it will cause any entity subleasing, licensing or otherwise occupying or maintaining equipment in any Premises to make
a similar covenant for the benefit of Landlord; and (z) it will recognize the validity of Landlord’s trademarks as set forth
in Exhibit C hereto and will refrain from using any of such trademarks or any other term that could be readily confused with Landlord’s
trademarks. Tenant acknowledges and agrees that the covenants and restrictions set forth in this Paragraph are a material inducement
for Landlord to enter into this Agreement with Tenant and a default hereunder shall be deemed a material default under the Current
Lease for which Landlord shall have all of its rights and remedies set forth in the Current Lease and at law. Among any other remedies
for any such default permitted by law or the provisions of the Current Lease, Landlord shall be entitled to enjoin Tenant from
any violation of such covenants and restrictions.


 






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(B)         If,
at any time during the Amended Lease Term, or any 2nd Extension Term, Landlord installs, or licenses or otherwise permits
another party to install, a Building-wide system for an interconnections/“meet-me room” (which Landlord shall be under
no obligation to do), then, once such system is operational, all further communications interconnections made by Tenant shall be
by way of such system and pursuant to the Building-wide regulations applicable thereto and Tenant shall pay the reasonable Building-wide
charges with respect to any such further interconnections. Any previously existing interconnections shall continue to be governed
by the applicable provisions of the Current Lease.


 


(C)         Anything
in subparagraphs (A) or (B) of this Paragraph 8 to the contrary notwithstanding, but subject to all applicable provisions of the
Current Lease. Tenant may license (a “Collocation License”) portions of the Existing Premises to users solely for collocation
purposes in Tenant’s ordinary course of business (a “Collocation Licensee”), provided, however, that (i) such
Collocation License and the rights of such Collocation Licensee shall at all times be subordinate to the Current Lease and shall
not be binding on Landlord, (ii) such Collocation License will expire no later than the day prior to the expiration or earlier
termination of the Current Lease, and (iii) such Collocation License shall be for location of communications equipment only and
shall not grant to the Collocation Licensee the right to occupy any portion of the Building or the Existing Premises. The provisions
of subsection (K) of Section 44 of the Current Lease shall be applicable to all Collocation Licenses as if each such Collocation
License was a sublease (although no provision hereof shall have the effect of constituting any Collocation License as a sublease).


 


8.      
    Conduit Charges.


 


Landlord and Tenant acknowledge and
agree that:


 


(A)         As
of the date hereof, Tenant is paying charges for
conduits installed pursuant to the Existing Lease (“Conduit Charges”) in the amount of $113,468.43 per annum
(as detailed in Exhibit D annexed hereto).


 


(B)         An
audit performed by Landlord of conduits installed in the Building by Tenant indicates that there is additional linear footage of
conduits installed pursuant to the Existing Lease (totaling 3,285 linear feet), the total linear footage of conduits presently
installed pursuant to the Existing Lease constituting an agreed total of 14,585
linear feet and being hereinafter collectively called the “Current Conduits.”


 


(C)         Anything
in Section 64 of the Existing Lease to the contrary notwithstanding:


 


(i)          Tenant
shall pay Landlord, throughout the Extended Lease Term and any 2nd Extension Term, as additional rent under the Current
Lease, Conduit Charges for the Current Conduits commencing at $150,466.31 per annum (as detailed
in Exhibit D hereto and as the same may be increased by Conduit Charges payable pursuant to agreements executed between the date
hereof and April 1, 2010) and increasing by three (3%) percent per annum, cumulatively, on each April 1 during the Extended
Lease Term and any 2nd Extension Term, which shall be payable on the first day of each month during the Extended Lease
Term and any 2nd Extension Term; 


 






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(ii)         All
future conduits installed by Tenant shall only be installed with Landlord’s prior written consent (which shall not be unreasonably
withheld or delayed) and in compliance with all applicable provisions of the Current Lease and applicable law and the requirements
of all governmental authorities having jurisdiction. The Conduit Charges for any such new conduits (regardless of their diameter)
shall be $1,000.00 per annum, per one hundred (100) linear feet, which Conduit Charges shall be increased by three (3%) percent
on each January 1 during the Extended Lease Term and any 2nd Extension Term after the installation of such conduits.
Prior to installing any such conduits, Landlord and Tenant shall execute and exchange Landlord’s then standard agreement
for conduits so installed, reflecting the Conduit Charges set forth in this subparagraph (C)(ii); and


 


(iii)        Anything
in the Current Lease to the contrary notwithstanding, provided (a) Tenant gives Landlord not less than thirty (30) days notice
of its intention to deactivate any Current Conduits (“Conduit Deactivation”), and (b) permanently completes the removal,
in compliance with all applicable provisions of the Current Lease, applicable law and the requirements of all governmental authorities
having jurisdiction, and to Landlord’s reasonable satisfaction, of all conduits and related equipment constituting a part
of any applicable Conduit Deactivation (collectively, “Conduit Removal”), Tenant may from time to time, effect a Conduit
Deactivation. Any Conduit Deactivation will be effective (“Conduit Removal Date”) ten (10) days after compliance with
all requirements of this subparagraph (iii). Upon the occurrence of any applicable Conduit Removal Date, the then applicable Conduit
Charges shall be reduced by the amount then being paid for the Current Conduits which are the subject to the Conduit Deactivation,
whereupon Landlord and Tenant shall execute and exchange an agreement, reasonably satisfactory to both, specifying the applicable
Conduit Removal Date, the Current Conduits which were the subject of the Conduit Deactivation and the resultant reduction in the
Conduit Charges theretofore applicable.


 


9.       
   POE Charges.


 


(A)         Landlord
and Tenant acknowledge that Tenant is utilizing eight points of entry to the Building (“POE’s”) as of the date
of this Agreement. Tenant may continue to utilize such POE’s throughout the balance of the Present Term, the Extended Lease
Term and any 2nd Extension Term.





 



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(B)         During
the Extended Lease Term, Tenant shall pay Landlord, as additional rent under the Current Lease, an annual charge for the POE’s
(“POE Charges”) as follows:


 


	Period	 	POE Charges 
Per Annum	 
	April 1, 2010 – March 31, 2013	 	 	-0-	 
	April 1, 2013 – March 31, 2016	 	$	100,000.00	 
	April 1, 2016 – March 31, 2019	 	$	150,000.00	 
	April 1, 2019 – March 31, 2025	 	$	200,000.00	 



 


(C)         Throughout
any 2nd Extension Term, the POE Charges shall be $250,000.00 per annum. 


 


(D)         The
POE Charges for each annual period (April 1 – March 31) during the Extended Lease Term and any 2nd Extension Term
during which POE Charges are payable shall be payable in twelve equal monthly installments, on the first day of each month during
the Extended Lease Term.


 


(E)         Anything
in the Current Lease to the contrary notwithstanding, provided, at any time during the Extension Term (i) Tenant gives Landlord
not less than thirty (30) days notice of its intention to deactivate no more than four (4) of the POE’s (“POE Deactivation”),
and (ii) permanently completes the removal, in compliance with all applicable provisions of the Current Lease, applicable law and
the requirements of all governmental authorities having jurisdiction, and to Landlord’s reasonable satisfaction, of all conduits,
wiring and other equipment entering the Building through any POE being deactivated, Tenant may perform the POE Deactivation. Under
no circumstances, may more than four (4) of the POE’s be deactivated during the Extension Term. Any POE Deactivation during
the Extension Term shall be effective (“POE Partial Removal Date”) ten (10) days after compliance with the requirements
of this subparagraph (E). From and after the occurrence of any POE Partial Removal Date, the then applicable POE Charges thereafter
shall be reduced by five (5%) percent for each permitted POE Deactivation during the Extension Term, whereupon Landlord and Tenant
shall execute and exchange an agreement reasonably satisfactory to both, specifying the applicable POE Partial Removal Date, the
(up to a total of four) POE’s which were the subject of such POE Deactivation and the resultant applicable reduction in the
POE Charges.


 


(F)         Anything
in this Agreement to the contrary notwithstanding, at any time during the 2nd Extension Term, provided Tenant complies
with all requirements of subsection (i) and (ii) of subparagraph (E) above, Tenant may deactivate all (but not less than all) remaining
POE’s (“POE Total Removal Date”), in which event, during the portion of any 2nd Extension Term commencing
ten (10) days after the POE Total Removal Date, no further POE Charges shall be payable.


 






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10.     
    Brokerage. Landlord and Tenant covenant, represent and warrant to
the other that each has had no dealings or communications with any broker or agent in connection with the consummation of
this Agreement other than CB Richard Ellis, Inc. (“CBRE”) and FirstService Williams LLC (“Williams”).
Landlord agrees to pay commissions to CBRE and Williams pursuant to separate agreements. Tenant covenants and agrees to
indemnify Landlord from and against all loss, damage, liability, cost and expense (including reasonable attorneys’ fees
and disbursements) relating to any claim by any broker or agent (other than CBRE and Williams) with respect to this Agreement
which is based on alleged actions of Tenant or its agents or representatives. Such indemnification shall survive any
expiration or termination of the Current Lease.


 


11.      
   First Mortgage. Supplementing all applicable provisions of the Existing
Lease (including, without limitation, Section 7 of the Existing Lease), the Current Lease is subordinate to any current or
future first mortgage on the Building. In the event of a foreclosure of such mortgage, Tenant shall attorn to the then
mortgagee thereunder and any subsequent owner or purchaser of the Building and the land on which it stands.


 


12.      
   Landlord’s Exercise of Self-Help. Any reservation of a right by
Landlord to enter upon the Existing Premises and to make or perform any repairs, alterations, or other work in, to, or about
the Existing Premises that, in the first instance, is Tenant’s obligation pursuant to the Current Lease, shall not be
deemed to (a) impose any obligation on Landlord to do so; (b) render Landlord liable to Tenant or to any third party for
Landlord’s failure to do so; or (c) relieve Tenant from any obligation to indemnify Landlord as otherwise provided in
the Current Lease.


 


13.        
 USA Patriot Act.


 


(A)         Certification.
Tenant hereby certifies that:


 


(i)          It
is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order or
the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or other banned
or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered
by the Office of Foreign Assets Control; and


 


(ii)         It
is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly
or indirectly on behalf of, any such person, group, entity, or nation.


 


(B)         Indemnification.
Tenant hereby agrees to defend, indemnify, and hold harmless Landlord from and against any and all loss, damage, liability, cost
and expense of any nature (including reasonable attorney’s fees and costs) arising from or related to any breach of the foregoing
certification.


 


(C)         Assignment
and/or Subletting. If Tenant assigns the Current Lease, the assignee under such assignment shall be required to expressly provide
any certification reasonably required by Landlord which relates to the USA Patriot Act. Any approved sublease of all or any portion
of the Existing Premises shall require the sublessee to provide any certification reasonably required by Landlord which relates
to the USA Patriot Act.


 






    	-11-



    	 



    
 


14.   
      Existing Lease Ratified. Except as modified by this
Agreement, the Existing Lease and all covenants, agreements, terms and conditions thereof shall remain in full force and
effect and the Existing Lease, as so modified, is hereby ratified and confirmed.


 


15.    
     Successors and Assigns. The covenants, agreements, terms and
conditions contained in this Agreement shall bind and inure to the benefit of the parties hereto and their respective
successors and, except as otherwise provided in the Current Lease, their respective assigns.


 


16.   
      Changes to Be in Writing. This Agreement may not be
changed orally, but only by a writing signed by the party against whom enforcement thereof is sought.


 


17.    
     Not Binding Until Executed by Landlord. The submission of
this Agreement to Tenant shall not constitute an offer by Landlord to execute and exchange this Agreement with Tenant and is
made subject to Landlord’s acceptance, execution and delivery hereof.


 


18.     
    Tenant’s Representation. Tenant hereby represents that, to
Tenant’s knowledge, Landlord is not in default in the performance of any of its obligations under the Current Lease as
of the date hereof.


 


IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the day and year first above written.


 


	 	60 HUDSON OWNER LLC
	 	 	 
	 	By:	HUDSON TELEGRAPH ASSOCIATES, L.P., its sole member
	 	 	 	 
	 	 	By:	Sixty Hudson Management LLC, its general partner
	 	 	 	 
	 	 	 	By:	/s/
    Kenneth Carmel
	 	 	 	 	Name: Kenneth Carmel
	 	 	 	 	Manager
	 	 	 	 	 
	 	ABOVENET COMMUNICATIONS INC.
	 	 
	 	By:	/s/
    Douglas M. Jendras
	 	 	Name: Douglas M. Jendras
	 	 	Title: Senior Vice President


 






    	-12-



    	 



    
 


EXHIBIT A


  


	Abovenet Inc. (ABVT.PK)	 	 	 	 	 	 
	 	 	 	 	 	 	 
	Income Statement	 	 	 	 	 	 
	 	 	 	 	 	 	 
	View: Annual Data|Quarterly Data	 	 	 	All numbers in thousands	 
	PERIOD ENDING	 	31-Dec-08	 	 	30-Sep-08	 	 	30-Jun-08	 	 	31-Mar-08	 
	Total Revenue	 	 	88,800	 	 	 	82,100	 	 	 	77,100	 	 	 	70,800	 
	Coat of Revenue	 	 	31,600	 	 	 	32.100	 	 	 	31,800	 	 	 	30.800	 
	Gross Profit	 	 	88400	 	 	 	60,000	 	 	 	48,800	 	 	 	40,100	 
	Operating Expenses	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Research Development	 	 	*	 	 	 	•	 	 	 	•	 	 	 	•	 
	Selling General and Administrative	 	 	21.700	 	 	 	22,000	 	 	 	21,100	 	 	 	24,800	 
	Non Recurring	 	 	•	 	 	 	•	 	 	 	*	 	 	 	•	 
	Others	 	 	11.300	 	 	 	12.200	 	 	 	12,200	 	 	 	12,600	 
	Total Operating Expenses	 	 	•	 	 	 	-		 	 	•	 	 	 	•	 
	Operating Income or Loss	 	 	28,300	 	 	 	14,800	 	 	 	12,200	 	 	 	2,700	 
	Income from Continuing Operations	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total Other Income/Expense Net	 	 	(1.600	)	 	 	(1,800	)	 	 	400	 	 	 	2.000	 
	Earnings Before Interest And Taxes	 	 	23,800	 	 	 	13,400	 	 	 	12,600	 	 	 	4,700	 
	Interest Expense	 	 	1,200	 	 	 	1,100	 	 	 	600	 	 	 	700	 
	Income Before Tax	 	 	22.800	 	 	 	12,300	 	 	 	11,700	 	 	 	4.000	 
	Income Tax Expense	 	 	6.300	 	 	 	1,800	 	 	 	600	 	 	 	800	 
	Minority Interest	 	 	*	 	 	 	 	 	 	 	 	 	 	 	 	 
	Net Income From Continuing Ops	 	 	17.300	 	 	 	10,400	 	 	 	11,200	 	 	 	3.400	 
	Non-recurring Events	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Discontinued Operations	 	 	•	 	 	 	-		 	 	 •	 	 	 	 	 
	Extraordinary Items	 	 	-		 	 	 •	 	 	 	*	 	 	 	•	 
	Effect Of Accounting Changes	 	 	 	 	 	 	 	 	 	 	•	 	 	 	•	
	Other Items	 	 	•	 	 	 	•	 	 	 	*	 	 	 	-	 
	Net Income	 	 	17,300	 	 	 	10,400	 	 	 	11,200	 	 	 	5,400	 
	Preferred Stock And Other Adjustments	 	 	-	 	 	 	-		 	 	 •	 	 	 	-	 
	Net Income Applicable To Common Shares	 	$	17,300	 	 	$	10,400	 	 	$	11,200	 	 	$	3,400	 



 






    	 



    	 



    
 


EXHIBIT B


 


GUARANTY


 


This
Guaranty, made as of the day of August, 2009, by ABOVENET, INC., a _____________ corporation,
having an address at 360 Hamilton Avenue, White Plains, New York (“Guarantor”), to
and for the benefit of 60 HUDSON OWNER LLC, a Delaware limited liability company, having an address c/o First Service Williams,
LLC, 380 Madison Avenue, New York, New York 10017 (“Landlord”).


 


WITNESSETH:


 


WHEREAS,
Landlord is the owner of the land and the building thereon (“Building”) known as 60 Hudson Street, in the Borough of
Manhattan, City, County and State of New York; and


 


WHEREAS,
by a certain lease modification and extension agreement (“Lease”), to be dated as of even date herewith between Landlord
and AboveNet Communications, Inc., as tenant (“Tenant”), Landlord intends to continue to demise to Tenant a portion
of the fifteenth (15th) floor (“Premises”) of the Building as more specifically described in the Lease;
and 


 


WHEREAS,
Guarantor desires to give this Guaranty to Landlord in order to induce Landlord to enter into the Lease with Tenant. 


 


NOW,
THEREFORE, for good and valuable consideration and as an inducement to Landlord to enter into the Lease:


 


1.          Guarantor
hereby unconditionally and absolutely guarantees to Landlord the full and prompt payment when due of the rent and additional rent
(however characterized) and all other sums and charges payable by the tenant under the Lease, and further hereby unconditionally
and absolutely guarantees the full and timely performance and observance of all covenants, terms, conditions and agreements therein
provided to be performed and observed by Tenant. Guarantor hereby covenants and agrees to and with Landlord that if default shall
at any time be made by Tenant, its successors and assigns, under the Lease, or if Tenant, its successors and assigns shall default
in the payment when due of such rent, additional rent, sums and charges payable by Tenant under the Lease, Guarantor will forthwith
upon demand therefor pay such rent and other sums and charges, and any arrears thereof, to Landlord and will forthwith faithfully
perform and fulfill all terms, covenants, conditions and agreements of the Lease, and will forthwith pay to Landlord all damages,
costs and expenses that may arise in consequence of any default by Tenant, its successors and assigns, under the Lease, including,
without limitation, all attorney’s fees and disbursements incurred by Landlord or caused by any such default and/or the enforcement
of this Guaranty. Successive recoveries may be had hereunder.


 


2.          This
Guaranty is an absolute and unconditional guaranty of payment and of performance. It shall be enforceable against Guarantor without
the necessity of any suit or proceedings on Landlord’s part of any kind or nature whatsoever against Tenant, its successors
and assigns, or any other person or entity (“Other Guarantor”) guaranteeing any of the same obligations guaranteed
by Guarantor hereunder and without the necessity of notice of nonpayment, nonperformance or nonobservance or any notice of acceptance
of this Guaranty and without need for demand for payment under this Guaranty or of any other notice or demand to which Guarantor
might otherwise be entitled, all of which Guarantor hereby expressly waives; and Guarantor hereby expressly agrees that the validity
of this Guaranty and the obligations of Guarantor hereunder shall in no respect be terminated, affected, diminished or impaired
by reason of the assertion or the failure to assert by Landlord against Tenant, or against Tenant’s successors and assigns,
or against any Other Guarantor, of any of the rights or remedies reserved to Landlord pursuant to the provisions of the Lease or
allowed at law or in equity, or by relief of Tenant or any Other Guarantor from any of their respective obligations under the Lease,
their guaranties or otherwise by (a) the release or discharge of Tenant or any Other Guarantor in any creditors’ proceedings,
receivership, bankruptcy or other proceedings, (b) the impairment, limitation or modification of the liability of Tenant or any
Other Guarantor or the estate of Tenant or any Other Guarantor in bankruptcy, or of any remedy for the enforcement of Tenant’s
said liability under the Lease, or any Other Guarantor’s liability under its guaranty, resulting from the operation of any
present or future provisions of the bankruptcy laws or from the decision in any court, (c) the rejection or disaffirmance of the
Lease in any such proceedings, or (d) any lack of validity or enforceability of this Guaranty, the Lease, any other guaranty or
any other circumstance which might otherwise constitute a defense available to Guarantor or Tenant.


 






    	 



    	 



    
 


3.          This
Guaranty shall be a continuing guaranty and the liability of Guarantor shall in no way be affected, modified or diminished by reason
of any assignment, amendment, renewal, supplement, modification or extension of, or expansion of the space covered by, the Lease;
any subletting of the Premises or any part thereof; any modification or waiver of or change in any of the terms, covenants, conditions
or provisions of the Lease; any extension of time that may be granted by Landlord to Tenant, its successors or assigns, or any
Other Guarantor; a changed or different use of the Premises, whether or not consented to by Landlord; or any dealings or transactions
or matters or things occurring between Landlord and Tenant, its successors or assigns, or any Other Guarantor, whether or not notice
thereof is given to Guarantor.


 


4.          This
Guaranty shall remain in full force and effect and continue to be effective should any petition be filed by or against Tenant for
liquidation or reorganization, should Tenant become insolvent or make an assignment for the benefit of creditors or should a receiver
or trustee be appointed for all or any significant part of Tenant’s assets, and shall, to the fullest extent permitted by
law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance guaranteed hereunder,
or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee of such obligations or such part thereof, whether as a “voidable preference,” “fraudulent transfer,”
or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof,
is rescinded, reduced, restored or returned, Guarantor’s obligations hereunder shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.


 


5.          Landlord’s
consent to any occupancy agreement covering, or subletting of, all or any portion of the Premises by any party or to any assignment
or successive assignments by Tenant or Tenant’s assigns of the Lease, made either with or without notice to Guarantor, shall
in no manner whatsoever release Guarantor from any liability hereunder.


 


6.          All
of Landlord’s rights and remedies under the Lease or under this Guaranty are intended to be distinct, separate and cumulative,
and no such right and remedy therein or herein mentioned, whether exercised by Landlord or not, is intended to be an exclusion
of or a waiver of any of the others. The obligation of Guarantor hereunder shall not be released by Landlord’s receipt, application
or release of any security given for the performance and observance of covenants and conditions required to be performed or observed
by Tenant under the Lease nor shall Guarantor be released by the maintenance of or execution upon any lien which Landlord may have
or assert against Tenant and/or Tenant’s assets.


 



    	 



    	 



    
 


7.          Guarantor
hereby submits itself to the jurisdiction of the courts of New York in any action or proceeding against Guarantor arising out of
this Guaranty and designates Tenant and the Secretary of State of the State of New York, acting severally, as its agent for service
of process in any such action or proceeding. A copy of any such service shall be mailed to Guarantor as provided in Paragraph 11.
Guarantor may change its agent for service of process by notice given to Landlord as provided in Paragraph 11 hereof. Any such
substituted agent must be resident in New York City.


 


8.          Guarantor
hereby covenants and agrees to and with Landlord, its successors and assigns, that Guarantor may be joined in any action against
Tenant or against any one or more Other Guarantors in connection with the Lease and that recovery may be had against Guarantor
in such action or in any independent action against Guarantor without Landlord, its successors or assigns, first pursuing or exhausting
any remedy or claim against Tenant, its successors or assigns or against any one or more Other Guarantors. Guarantor also agrees
that, in any jurisdiction, it will be conclusively bound by the judgment in any such action by Landlord against Tenant (wherever
brought) as if Guarantor were a party to such action even though Guarantor is not joined as a party in such action.


 


9.          Guarantor
hereby waives all right to trial by jury in any action or proceedings hereafter instituted by Landlord to which Guarantor may be
a party.


 


10.         If
this Guaranty is held ineffective or unenforceable by any court of competent jurisdiction, Guarantor shall be deemed to be a tenant
under the Lease with the same force and effect as if Guarantor were expressly named as a joint tenant therein with joint and several
liability.


 


11.         Any
notice, demand or request by either party to the other shall be in writing, and shall be deemed to have been duly given or made
if mailed by certified mail, return receipt requested, addressed to the other party at its address above set forth or to such other
address as the receiving party shall have designated by notice given as above provided. Notices so given shall be deemed received
on the third (3rd) business day after mailing.


 


12.         This
Guaranty shall be construed in accordance with and governed by the laws of the State of New York.


 


13.         This
Guaranty shall inure to the benefit of Landlord and Landlord’s successors and assigns, and shall be binding upon and enforceable
against Guarantor and Guarantor’s successors and assigns.


 


IN
WITNESS WHEREOF, Guarantor has executed this instrument the day and year first above written.


 


	WITNESS:	 	ABOVENET, INC.	 
	 	 	 	 	 
	 	 	By: 	 	 
	 	 	 	Name:	 
	 	 	 	Title:	 



 






    	 



    	 



    



 


ACKNOWLEDGMENT


 


	STATE OF NEW YORK	)	 
	 	 	 
	 	) ss.:	 
	 	 	 
	COUNTY OF WESTCHESTER	)	 


 


On
the day of August in the year 2009, before me, the undersigned, a Notary Public in and for said state, personally appeared                                                , personally
known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is (are) subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies) and that by his/her/their
signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.


 


	 	 	 


 






    	 



    	 



    



 


EXHIBIT C


 


LANDLORD’S TRADEMARKS


 


60 Hudson Street Meet Me
Room


 


Hudson Street Meet Me Room


 


Meet Me Area at 60 Hudson
Street


 


Hudson Telegraph Meet Me
Room


 


The Meet Me Room at 60
Hudson Street


 


60 Hudson Street Meet Me Are


 






    	 



    	 



    
 


EXHIBIT D









 





	 	 	Abovenet 	 	 	 	 	 	 	 	 
	Conduit	 	Current Conduits 	 	 	Annual Charge	 	 	Increase	 	 	Annual Charge
	 	 	 	 	 	@ 07/01/09	 	 	Effective Date	 	 	@ 04/01/10
	 	 	 	 	 	 	 	 	 	 	 	 
	CDB	 	 	08/1/2008-07/31/09	 	 	 	1,281.00	 	 	 	08/01/09	 	 	1,332.24
	CDC	 	 	06/1/2009-05/31/10	 	 	 	2,415.72	 	 	 	06/01/10	 	 	2,415.72
	CDD	 	 	06/1/2009-05/31/10	 	 	 	159.84	 	 	 	06/01/10	 	 	159.84
	CDE	 	 	06/1/2009-05/31/10	 	 	 	586.20	 	 	 	06/01/10	 	 	586.20
	CDF	 	 	10/1/2008-09/30/09	 	 	 	3,339.48	 	 	 	10/01/09	 	 	3,473.04
	CDG	 	 	06/1/2009-05/31/10	 	 	 	4,793.88	 	 	 	06/01/10	 	 	4,793.88
	CDH	 	 	04/1/2009-03/31/10	 	 	 	3,787.08	 	 	 	04/01/10	 	 	3,787.08
	CDI	 	 	03/1/2009-02/28/10	 	 	 	3,269.76	 	 	 	03/01/10	 	 	3,400.56
	CDJ	 	 	03/1/2009-02/28/10	 	 	 	4,341.24	 	 	 	02/01/10	 	 	4,514.88
	CDK	 	 	10/1/2008-09/30/09	 	 	 	785.64	 	 	 	10/01/09	 	 	817.08
	CDL	 	 	04/1/2009-03/31/10	 	 	 	819.84	 	 	 	04/01/10	 	 	819.84
	CDM	 	 	08/1/2008-07/31/09	 	 	 	7,185.00	 	 	 	08/01/09	 	 	7,472.40
	CDN	 	 	11/1/2008-10/30/09	 	 	 	2,392.32	 	 	 	11/01/09	 	 	2,488.08
	MSI	 	 	03/1/2009-02/28/10	 	 	 	16,063.08	 	 	 	02/01/10	 	 	16,705.76
	MS2	 	 	03/1/2009-02/28/10	 	 	 	58,481.04	 	 	 	02/01/10	 	 	60,820.32
	MS3	 	 	03/1/2009-02/28/10	 	 	 	2,801.04	 	 	 	02/01/10	 	 	2,913.12
	 	 	 	 	 	 	 	112,502.16	 	 	 	 	 	 	116,500.04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	Additional conduits	 	 	 	 	 	 	 	 	 	 	33,000.00
	 	 	 	Installed (Audit)	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	New conduit	 	 	 	 	 	 	 	 	 	 	 
	CDO	 	 	07/1/09-06/30/10	 	 	 	966.27	 	 	 	07/01/10	 	 	966.27