Unassociated Document


    
      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 SL Green Realty Corp., 420 Lexington Avenue, New York, New
        York
        10170 (hereinafter referred to as “Landlord”) and FUSION TELECOMMUNICATIONS,
        INC., having an office at 420 Lexington Avenue, New York, New York 10170
        (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 420 Lexington Avenue, New York, New
        York
        10170 (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 SL Green 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
	 
 	 
 	 
 
	 	By:  	 
	 	Name:	 
	 	Title:	 
	 	 


        



      
        	Witness:	 	 	 
	 
                	 	 	 
	
                
                  Name:

                  Title:

                

              	 	 	
              
	 	 	 	 


      

      
         

        
          
            	 	 	 
	 	FUSION
                    TELECOMMUNICATIONS, INC.,
                    as Tenant
	 
 	 
 	 
 
	 	By:  	 
	 	Name:	 
	 	Title:	 
	 	 


          



        
          	Witness:	 	 	 
	 
                  	 	 	 
	
                  
                    Name:

                    Title:

                  

                	 	 	
                
	 	 	 	 


        

        


        
          
            
            

          

          
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