MODIFICATION OF LEASE AGREEMENT
MODIFICATION
OF LEASE AGREEMENT
MODIFICATION
OF LEASE AGREEMENT
dated as
of the 11th day of November, 2005 between SLG GRAYBAR SUBLEASE LLC, having
an office c/o ▇▇ ▇▇▇▇▇ Realty Corp., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇
▇▇▇▇▇ (hereinafter referred to as “Landlord”) and FUSION TELECOMMUNICATIONS,
INC., having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as “Tenant”).
WITNESSETH:
WHEREAS,
Landlord
and Tenant have previously entered into that certain lease agreement dated
January 19, 2000 (the “Lease”) covering the premises known as Rooms 518-25, as
more particularly described in the Lease, (the “Premises”) in the building known
as the Graybar Building and located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇
▇▇▇▇▇ (the “Building”), under the terms and conditions contained therein;
and
WHEREAS,
Landlord
has agreed to modify the Lease in order to allow Tenant a one (1) time option
to
cancel the Lease, subject to the terms and conditions as set forth at length
below;
NOW,
THEREFORE,
in
consideration of the mutual covenants contained herein, the parties agree
as
follows:
1.
Tenant
shall have the one (1) time option to cancel the Lease in its entirety (the
“Cancellation Option”), provided that (i) Tenant delivers written notice to
Owner of its intention to exercise the Cancellation Option (the “Cancellation
Notice”) no less than forty-five (45) days (time being of the essence) prior to
the effective date of such cancellation (the “Cancellation Date”), (ii) the
Cancellation Date shall occur no earlier than February 1, 2006 and no later
than
July 30, 2006 (time being of the essence) (the “Cancellation Period”), (iii) the
Cancellation Date shall occur on the last day of a calendar month during
the
Cancellation Period, (iv) Tenant is not in default of any of the terms,
covenants and conditions of this Lease after notice, (a) on the date that
the
Cancellation Notice is delivered by Tenant to Landlord, and (b) the Cancellation
Date, and (v) Tenant delivers to Landlord possession of the Premises vacant
and
broom clean, free of all personal property, occupancies, liens and encumbrances
on the Cancellation Date. Tenant’s failure to timely and fully comply with
aforementioned sections (i) through (iv) of this Article 1, shall constitute
a
waiver of the Cancellation Option. Landlord
shall
have the right, in its sole discretion, to waive any or all of the foregoing
conditions to Tenant’s exercise of the cancellation of the Lease
hereunder.
2.
Notwithstanding any cancellation by Tenant in accordance with the provisions
of
this Article, Tenant shall remain liable to satisfy any and all of its
obligations under the terms, covenants and conditions of this Lease which
have
accrued through the Cancellation Date, which obligations shall survive such
cancellation.
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3. Tenant’s
Representations and Warranties.Tenant
hereby represents and warrants to Landlord, its successors and assigns, that:
(i) the Lease has not been assigned, pledged or encumbered, (ii) except for
Tenant, the Premises are currently free of all occupancies, (iii) Tenant
has not
created or suffered any occupancies by third parties in and/or to the Premises
through and including the date of this agreement and (iv) no materials
or fixtures presently in the Premises (“Property”) are subject to any lien,
encumbrance, chattel mortgage, title retention or security agreement and
no
action has been taken or suffered by Tenant as a result of which either the
Premises or any Property shall or might be subject thereto. Tenant
covenants and agrees that it shall not at any time hereafter create, suffer
or
permit the creation of any such rights or encumbrances in or to the Premises
or
the Property contained therein.
Any
Property left in the Premises by Tenant after the Cancellation Date shall
be
deemed to have been abandoned by Tenant, and Landlord shall have the right
to
retain or dispose of such Property at the expense of Tenant without any
obligation to account to Tenant therefor.
4.
Rental
Arrears.
Notwithstanding the cancellation of the Lease contemplated in this agreement
and
notwithstanding anything to the contrary contained in this agreement, Tenant
shall to remain liable for any unpaid rent, additional rent and charges accruing
under the Lease through and including the Cancellation Date.
5. Successors/Assigns.
This
agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
6. Entire
Agreement.
This
agreement represents the entire understanding between the parties with regard
to
the matters addressed herein and may only be modified by written agreement
executed by all parties hereto. All prior understandings or representations
between the parties hereto, oral or written, with regard to the matters
addressed herein, other than the Lease, are hereby merged herein.
7.
Effectiveness.
This
agreement shall not be binding upon Landlord until executed and delivered
by
both Landlord and Tenant.
8. Ratification.
Except
as specifically modified herein, all other terms, covenants and conditions
of
the Lease are and shall remain in full force and effect through the Cancellation
Date and are hereby ratified and confirmed.
9.
No
Brokers/Indemnification.
Tenant
covenants, represents and warrants that Tenant has had no dealings or
negotiations with any broker or agent in connection with the consummation
of
this agreement other than ▇▇ ▇▇▇▇▇ Leasing (the “Broker”) and Tenant covenants
and agrees to defend, hold harmless and indemnify Landlord from and against
any
and all cost, expense (including reasonable attorneys' fees) or liability
for
any compensation, commissions or charges claimed by any other broker or agent
other than the Broker, with respect to this Agreement or the negotiation
thereof.
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10. Miscellaneous.
A.
The
captions in this agreement are for convenience only and are not to be considered
in construing this agreement.
B.
This
agreement shall be construed without regard to any presumption or other rule
requiring construction against the party causing this agreement to be
drafted.
C.
Terms
used in this agreement and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Lease.
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D.
If any
provision of this agreement or its application to any person or circumstances
is
invalid or unenforceable to any extent, the remainder of this agreement,
or the
applicability of such provision to other persons or circumstances, shall
be
valid and enforceable to the fullest extent permitted by law and shall be
deemed
to be separate from such invalid or unenforceable provisions and shall continue
in full force and effect.
| SLG GRAYBAR SUBLEASE LLC, as Landlord | ||
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| By: | ||
| Name: | ||
| Title: | ||
| Witness: | |||
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Name:
Title:
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| FUSION TELECOMMUNICATIONS, INC., as Tenant | ||
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| By: | ||
| Name: | ||
| Title: | ||
| Witness: | |||
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Name:
Title:
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