Unassociated Document


    FOURTH
      AMENDMENT TO LEASE AGREEMENT

     

    


    THIS
      FOURTH AMENDMENT TO LEASE AGREEMENT
      (the "
      Fourth Amendment") is dated the _______ day of February, 2006, by and between
      FORT
      LAUDERDALE CROWN CENTER, INC.,
      a
      Florida corporation (hereinafter referred to as "Landlord") and FUSION
      TELECOMMUNICATIONS INTERNATIONAL, INC.,
      a
      Delaware corporation (hereinafter referred to as "Tenant").

     

    WITNESSETH:

     

    WHEREAS,
      Landlord and Tenant entered into that certain Lease Agreement dated on or about
      October, 1999 (the "Original Lease"), for approximately 13,502 rentable square
      feet (the "Original Premises") located on the second (2nd)
      floor
      in Suite 220 of that certain building known as the "Crown Center" located at
      1415 Cypress Creek Road, Fort Lauderdale, Florida 33309 (the "Original
      Building"); and

     

    WHEREAS,
      the
      Original Lease was amended by (i) that certain Amendment Number One to Lease
      Agreement dated December 19, 1999 (the "First Amendment"), and (ii) that certain
      Second Amendment to Lease Agreement dated April 24, 2003 (the "Second
      Amendment"); and 

     

    WHEREAS,
      Landlord and Tenant entered into that certain Third Amendment to Lease dated
      April 28, 2004 (the “Third Amendment”) to, inter alia, relocate the Original
      Premises to the premises containing approximately 9,716 rentable square feet
      located on the second floor in Suite 204 of the "Crown Center" building located
      at 1475 Cypress Creek Road, Fort Lauderdale, Florida 33309; and

     

    WHEREAS,
      the
      Original Lease as amended by the First Amendment, the Second Amendment, and
      the
      Third Amendment shall be collectively hereinafter referred to as the "Lease";
      and 

     

    WHEREAS,
      Landlord and Tenant desire to enter into this Fourth Amendment to expand the
      Premises, extend the Term, and otherwise amend the Lease as hereinafter set
      forth.

     

    NOW,
      THEREFORE,
      for and
      in consideration of the foregoing premises, the promises hereinafter contained
      and other good and valuable consideration, the receipt and sufficiency of which
      are hereby acknowledged, the parties hereto, intending to be legally bound,
      do
      hereby agree as follows:

     

    1. Recitals.
      The
      foregoing recitations are true and correct and are incorporated herein by this
      reference.

     

    2. Conflict.
      In
      the
      event of any conflict between the provisions of the Lease and the provisions
      of
      this Fourth Amendment, the provisions of this Fourth Amendment shall control.
      The initial capitalized terms used herein shall have the same meaning given
      such
      terms in the Lease, unless otherwise defined herein or unless the context
      otherwise indicates.

     

    3. Expansion
      of Premises.
      Effective upon the date that Landlord substantially completes the Tenant
      Improvements (as hereinafter defined) and delivers the Expansion Premises (as
      hereinafter defined) to Tenant (“Expansion Premises Commencement Date”), and
      throughout the Lease Term, the Premises shall be expanded to include an
      additional 3,433 rentable square feet on the second (2nd) floor of the Building,
      as depicted on Exhibit “A” attached hereto and made a part hereof (the
“Expansion Premises”). Landlord shall use its best efforts to deliver the
      Expansion Premises to Tenant on or before May 1, 2006; provided, however, that
      Tenant expressly acknowledges and agrees that (i) the foregoing estimate may
      be
      affected by factors beyond Landlord’s control, including, without limitation,
      delays in obtaining necessary building permits, and (ii) that Landlord shall
      have no liability to Tenant and that Landlord shall not be in default under
      the
      Lease if, in spite of Landlord’s best efforts, Landlord does not deliver
      possession of the Expansion Premises to Tenant on or before May 1, 2006.
      Thereafter, the Premises shall be modified to mean 13,149 rentable square feet
      of space consisting of the Premises, as expanded by the Expansion Premises,
      and
      all references in the Lease to the term “Premises” shall refer to the Premises,
      including the Expansion Premises. The Expansion Space is subject to all of
      the
      terms and conditions of the Lease, as amended.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    4. Condition
      of Expansion Premises.
      Landlord
      shall not be responsible for the renovation, construction or installation of
      any
      leasehold improvements relating to the Expansion Premises, except as expressly
      hereinafter set forth. Tenant acknowledges that Landlord has not made any
      representations or warranties with respect to the condition of the Expansion
      Premises and neither Landlord nor any assignee of Landlord shall be liable
      for
      any latent defect therein. The taking of possession of the Expansion Premises
      by
      Tenant shall be conclusive evidence that the Expansion Premises was in good
      and
      satisfactory condition at the time such possession was taken. Landlord shall
      perform the improvements to the Expansion Premises shown on Exhibit “B” attached
      hereto (the “Tenant Improvements”). All work will be scheduled by Landlord
      during normal business hours on normal business days in cooperation with Tenant
      in a manner as to not inconvenience other tenants of the Building. If
      applicable, Tenant shall be responsible for the movement of any of its equipment
      and furniture necessary to accommodate Landlord’s work schedule. Landlord and
      its contractor assume no liability for Tenant’s equipment, furniture or other
      personal property at the Expansion Premises during the construction of the
      Tenant Improvements and Tenant shall hold Landlord, its contractors and their
      respective agents and employees (“Landlord’s Indemnified Parties”) harmless and
      indemnify same from and against any damage or injury relating to Tenant’s
      equipment, furniture or personal property left in the Expansion Premises during
      the construction of the Tenant Improvements, unless caused by the willful
      misconduct of the Landlord’s Indemnified Parties.

    


    5. Extended
      Term.
      The Term
      of the Lease shall be extended for a period of eight (8) years from the
      Expansion Premises Commencement Date (the "Extended Term"), and shall expire
      at
      midnight (Eastern Standard Time) on the date immediately preceding the eighth
      (8th)
      anniversary of the Expansion Premises Commencement Date (the "Extended
      Expiration Date"), and all references in the Lease to the Expiration Date of
      the
      Term of the Lease shall hereafter be deemed to refer to the Extended Expiration
      Date. Notwithstanding anything set forth in the Lease to the contrary, Tenant
      shall not have any right or option to extend the Term beyond the Extended
      Expiration Date, except as hereinafter expressly set forth in this Fourth
      Amendment. 

     

    6. Base
      Rent.
      From
      the Expansion Premises Commencement Date through June 30, 2006, Tenant shall
      pay
      Base Rent to Landlord, plus applicable sales tax thereon, as follows:


    


    
      	
              Period

            	
              Base
                Rent per RSF 

              per
                Annum

            	
              Monthly
                Base Rent 

              Payments
                (not 

              including
                sales tax)

            
	
              Expansion
                Premises Commencement Date through June 30, 2006

            	
              $11.96

            	
              $13,105.17

            


    

    


    Commencing
      on July 1, 2006, and on each anniversary thereof during the Extended Term,
      Base
      Rent shall increase by four percent (4%). 


     

    7. Tenant’s
      Proportionate Share.
      Effective as of the Expansion Premises Commencement Date and throughout the
      Extended Term of the Lease, Tenant shall continue to pay to Landlord, in the
      form of Additional Rent, plus applicable sales tax thereon, Tenant's
      Proportionate Share of the Operating Expenses of the Building and the Property
      for the applicable calendar year in accordance with the terms of the Lease.
      Upon
      the Expansion Premises Commencement Date and throughout the Extended Term,
      Tenant's Proportionate Share shall be modified to mean 19.17% (to wit:
      13,149/68,608 x 100). 

     

    8. Parking.
      Effective
      as of the Expansion Premises Commencement Date, Article VI of the Lease shall
      be
      deleted in its entirety and the following shall be inserted in lieu
      thereof:

     

    "There
      shall be available at the Building up to four (4) parking spaces for each 1,000
      square feet of rentable square feet contained in the Premises (to wit: fifty-two
      (52) nonreserved spaces), for the nonexclusive use of Tenant, free of charge.
      Seven (7) covered parking spaces of these fifty-two (52) parking spaces will
      be
      designated reserved for Tenant and located in an area as reasonably designated
      by Landlord."

     

    9. Right
      of First Refusal.
      Section
      17 of the Third Amendment is hereby deleted in its entirety and the following
      is
      inserted in lieu thereof:

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    “Provided
      Tenant is not in default of the Lease and is still occupying the Premises,
      Landlord shall grant Tenant one (1) right of first refusal on any space located
      on the second (2nd) floor of the Building (“First Refusal Space”), subject to
      the rights of existing tenants to such space. The exercise of Tenant’s right of
      first refusal shall be accomplished as follows: Within five (5) days of Landlord
      entering into a signed letter of intent with a prospective tenant for the First
      Refusal Space, Landlord shall provide Tenant with written notice of the same,
      which notice shall include all of the business terms of such proposed lease
      (“Landlord’s Notice”). Tenant shall have seven (7) days after receipt of
      Landlord’s Notice to either accept all of the terms contained in Landlord’s
      Notice or reject the offer contained in Landlord’s Notice. Tenant’s failure to
      respond within such time period shall be deemed a waiver of Tenant’s right of
      first refusal. If Tenant accepts such offer, Landlord and Tenant shall
      thereafter execute an amendment to the Lease expanding the Premises to include
      the First Refusal Space upon the terms and conditions contained in Landlord’s
      Notice. If Tenant rejects the offer, Landlord shall have the right to lease
      the
      First Refusal Space to any other tenant (or third party) without regard to
      the
      Lease or Tenant’s rights thereunder. Time is of the essence with regard to the
      notifications in this section.” 

    


    10. Option
      to Renew.
      Provided
      Tenant is not currently in default of any provision of this Lease, and Tenant
      is
      still occupying the Premises, Landlord shall grant Tenant one (1) five-year
      option to renew the Lease (“Option to Renew”) at the conclusion of the Extended
      Term as to the entire Premises only. Tenant shall notify Landlord of Tenant’s
      intent to exercise its Option to Renew no later than nine (9) months prior
      to
      the expiration of the Extended Term, with time being of the essence as to this
      notification period. The Base Rent during the renewal term shall equal the
      then
      prevailing market rate for comparable buildings in the market in which the
      Building is located. Notwithstanding anything to the contrary herein, Base
      Rent
      for the renewal term shall in no event be less than the Base Rent payable under
      the Lease during the last year of the Extended Term. Within thirty (30) days
      after Tenant notifies Landlord of its intent to exercise its Option to Renew,
      Landlord shall determine the then prevailing market rate for comparable
      buildings in the market in which the Building is located and shall notify Tenant
      of the prevailing market rate.

    


    The
      then
      prevailing market rate, as determined in accordance with this Section,
      multiplied by the rentable square feet of the Premises, shall be the annual
      Base
      Rent for the Premises for the first year of the renewal term, payable in advance
      and without notice, in equal monthly installments, commencing on the first
      day
      of the renewal term and continuing on the first day of each and every calendar
      month thereafter during the first year of the renewal term. Commencing with
      the
      first month of the second year and each successive year throughout the renewal
      term thereafter, the annual Base Rent shall be increased over the annual Base
      Rent for the previous year by four percent (4%).
      

    


    11. Broker.
      The
      parties represent and warrant to each other that they have not dealt with any
      real estate brokers, salesmen, or finders in connection with this Fourth
      Amendment other than Commercial Property Realty Advisors, LLC (the “Broker”).
      Landlord shall be responsible to pay a commission to the Broker in accordance
      with a separate agreement between Landlord and Broker. Other than the Broker,
      if
      a claim for commission in connection with this transaction is made by any
      broker, salesmen, or finder claiming to have dealt through on behalf of one
      of
      the parties hereto, such party shall indemnify, defend and hold the other party
      hereunder harmless from and against all liabilities, damages, claims, costs,
      fees and expenses (including reasonable attorney's fees and court costs at
      trial
      and all appellate levels) with respect to said claim for brokerage.


     

    12. Choice
      of Law.
      This
      Fourth Amendment shall be construed and interpreted in accordance with the
      laws
      of the State of Florida, contains the entire agreement of the parties hereto
      with respect to the subject matter hereof, and may not be changed or terminated
      orally or by course of conduct, or by any other means except by a written
      instrument, duly executed by the party to be bound thereby. This Fourth
      Amendment shall inure to the benefit of and shall be binding upon the parties
      hereto and their respective successors and assigns.

     

    13. Ratification.
      Except
      as
      modified hereby, the Lease shall remain in full force and effect in accordance
      with the terms and provisions thereof and Tenant hereby ratifies and affirms
      all
      of the terms and conditions thereof.

     

    14. Counterparts.
      This
      Amendment may be executed in several counterparts, each of which shall be fully
      effective as an original and all of which together shall constitute one and
      the
      same instrument. Signature pages may be detached from the counterparts and
      attached to a single copy of this document to physically form one
      document.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    15. Authority.
      Each
      party hereto warrants and represents that it has the authority to enter into
      this Fourth Amendment without the joinder of any other party; that the person
      executing this Fourth Amendment of its behalf is authorized to do so; and that
      this Fourth Amendment is valid, binding and enforceable against such party.
      

    


     

    IN
      WITNESS WHEREOF,
      the
      undersigned have executed this Fourth Amendment as of the date first above
      written.

     

    
      	 	 	
              "LANDLORD"

            
	 	 	 
	
              WITNESS:

            	 	
              FORT
                LAUDERDALE CROWN CENTER, INC.,
                a
                Florida corporation

            
	 	 	 
	  
	 	  

	
              Print
                Name: __________________________________

               

              Print
                Name: __________________________________

            	 	
              By:
                __________________________________

              Print
                Name: ____________________________

              Title:
                _________________________________

            
	 	 	 
	 	 	
              "TENANT"

            
	 	 	 
	
              WITNESS:

            	 	
              FUSION
                TELECOMMUNICATIONS INTERNATIONAL, INC.,
                a
                Delaware corporation 

            
	 	 	 
	  
	 	By:
	
              Print
                Name: __________________________________

               

              Print
                Name: __________________________________ 

            	 	
              Print
                Name: _____________________________

              Title:
                __________________________________

            


    

    


    
      
        
        

      

      
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