LEASE MODIFICATION AGREEMENT
LEASE
MODIFICATION AGREEMENT (this “Agreement”)
dated
as of the 11th day of November, 2006 between SLG Graybar Sublease, LLC,
having an office c/o XX Xxxxx Realty Corp., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx
Xxxx (hereinafter referred to as “Landlord”)
and
Fusion Telecommunications International, Inc., having an office at 000 Xxxxxxxxx
Xxxxxx, Xxxx 0000-0000, Xxx Xxxx, Xxx Xxxx (hereinafter referred to as
“Tenant”).
WITNESSETH:
WHEREAS,
Landlord and Tenant, entered into that certain lease agreement dated as of
November 1, 2005 (the “Lease”)
covering certain space located on the seventeenth (17th)
floor
commonly known as Room 1718-1722 as more particularly described in said lease
agreement (the “Premises”),
in
the building known as 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the
“Building”)
under
the terms and conditions contained therein; and
WHEREAS,
Landlord and Tenant wish to modify the Lease in order to allow Tenant the option
of furnishing the security deposit required under the Lease in the form of
a
letter of credit, subject to the terms, covenants and conditions of the Lease,
as modified by this Agreement.
NOW,
THEREFORE, in
consideration of the mutual agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Security
Deposit/Letter of Credit.
Effective
as of the date hereof, Article 31 of the Lease shall be modified by adding
the
following verbiage:
31.06 Notwithstanding
anything contained herein to the contrary, in lieu of a cash deposit, Tenant
shall be permitted to deliver to Landlord as and for security hereunder a clean,
irrevocable and unconditional letter of credit in an amount equal to the
security required to be deposited by Tenant pursuant hereto which shall comply
and conform in all material respects with the form annexed hereto and made
apart
hereof as Exhibit
A
(hereinafter called the "Credit"), to be held, used and drawn upon solely under
the security provisions of this Lease, which Credit shall be issued by a bank
which is a member of the New York Clearing House Association, in the amount
of
$428,390.55, naming Landlord (or its successor as Landlord) as beneficiary.
The
Credit shall be transferable. All transfer fees shall be payable by Tenant.
31.07 If
during
the term of this Lease, the Credit and/or the proceeds of all or part of said
Credit become less than the full amount of the security hereinabove required,
then and in such event Tenant shall, upon demand, deposit with Landlord the
amount of any security/Credit theretofore used or applied by Landlord pursuant
to the terms hereof in order that Landlord shall have the full security on
hand
at all times during the term of this Lease. If at the expiration of the term
of
this Lease, Landlord holds all or part of said Credit, and Tenant is not in
default under any of the terms, covenants and conditions of this Lease, then
Landlord will turn over said Credit to Tenant or assign it to the designee
of
Tenant.
31.08
It
shall be the obligation of Tenant during the term of this Lease to deliver
to
Landlord at least sixty (60) days prior to the expiration date of the then
existing Credit, a renewal or extension of said Credit or a substitute Credit
(each fully complying with the foregoing). If for any reason Landlord has not
received such renewal or extension or substitute Credit within sixty (60) days
prior to the expiration date of the then existing Credit, then and in such
event
Landlord shall be free to draw on the Credit and hold and use and apply the
proceeds thereof in accordance with the security deposit provisions of this
Lease. Tenant agrees to reimburse Landlord for any reasonable attorneys' fees
incurred by Landlord, after the commencement of the term of this Lease, in
connection with reviewing the Credit and any renewals, extensions or
substitutions therefor, ensuring that the provisions of the Credit and any
renewals, extensions or substitutions therefor comply with the provisions of
this Article, drawing down upon the proceeds of Credit, or any renewals,
extensions or substitution therefor, or ensuring that the security/Credit is
maintained as required under this Lease.”
2. Successors
and Assigns.
This
agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
3. Entire
Agreement; Effectiveness; Ratification.
The
Lease, as modified by 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. This agreement shall not be binding upon Landlord and Tenant
until executed and delivered by both Landlord and Tenant. Except as specifically
modified herein, all other terms, covenants and conditions of the Lease are
and
shall remain in full force and effect and are hereby ratified and
confirmed.
4. 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 XX Xxxxx Leasing, LLC 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 broker or agent with respect
to this Agreement or the negotiation thereof.
5. Miscellaneous.
The
captions in this Agreement are for convenience only and are not to be considered
in construing this agreement. This Agreement may not be modified except in
a
writing signed by Landlord and Tenant. This Agreement shall be construed without
regard to any presumption or other rule requiring construction against the
party
causing this agreement to be drafted. Terms used in this Agreement and not
otherwise defined herein shall have the respective meanings ascribed thereto
in
the Lease. 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.
IN
WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement as of
the
day and year first above written.
SLG GRAYBAR SUBLEASE LLC, as Landlord | ||
By:_______________________________________ | ||
Name: | ||
Title: | ||
Witness: | ||
__________________________ | ||
Name: | ||
Title: | ||
FUSION TELECOMMUNICATIONS | ||
INTERNATIONAL, INC., as Tenant | ||
By:_______________________________________ | ||
Name: | ||
Title: | ||
Witness: | ||
__________________________ | ||
Name: | ||
Title: |