Exhibit
10.29
FIRST AMENDMENT TO
LEASE,
SURRENDER AND EXTENSION
AGREEMENT
This First Amendment to
Lease, Surrender and Extension Agreement (the
“Agreement”) is made and entered into as of this 11
th day of November, 2008 by and between 201-207 SOUTH
STREET LLC, a Delaware limited liability company
(“Landlord”), having an address c/o Essex River
Ventures, Inc., 52-R Roland Street, Charlestown, Massachusetts
02129 and ZOOM TELEPHONICS, INC. , a Delaware corporation
(“Tenant”), having an address at 207 South Street,
Boston, Massachusetts 02111.
WHEREAS
, Landlord and Tenant
entered into that certain Lease dated as of December 22, 2006 by
and between the Landlord and Tenant (the “Lease”)
pursuant to which Tenant leased from Landlord certain premises
comprised of approximately 25,200 rentable square feet of space
(the “Original Premises”) as more particularly shown on
Exhibit A attached hereto on the third (3 rd ), fourth
(4 th ) and fifth (5 th ) floors of the
building (the “Building”) known as and numbered 201-207
South Street, Boston, Massachusetts; and
WHEREAS
, notwithstanding the
provisions of the Lease, subject to the complete satisfaction of
the “Surrender Conditions”, Landlord and Tenant have
agreed that on or prior to January 1, 2009, Tenant shall
voluntarily and unconditionally surrender its right to possession
of approximately 10,800 rentable square feet of the Original
Premises (the “Surrender Premises”) as more
particularly shown on Exhibit B attached hereto to Landlord,
effective as of the “Surrender Date” (as said terms are
hereinafter defined); and
WHEREAS
, subject to the
satisfaction of the Surrender Conditions and Tenant’s
voluntary and unconditional surrender of its right to possession of
the Surrender Premises to Landlord on or prior to January 1, 2009,
the Premises shall be comprised of approximately 14,400 rentable
square feet, as more particularly shown on Exhibit C attached
hereto; and
WHEREAS
, Tenant shall continue
to use and occupy the entire fourth (4 th ) and fifth (5
th ) floors of 207 South Street and the entire fifth (5
th ) floor of 201 South Street in as is condition
without any representations or warranties (express, implied or
otherwise); and
WHEREAS
, on or prior to
January 1, 2009, Tenant, at its sole risk, cost and expense, shall
voluntarily and unconditionally vacate the entire third (3
rd ) floor of 207 South Street and the entire fourth (4
th ) floor of 201 South Street, Boston, Massachusetts;
and
WHEREAS
, Landlord and Tenant
mutually desire to extend the Term of the Lease commencing on
December 22, 2008 through and including December 21, 2011 (the
“Extended Term”), unless sooner terminated in
accordance with the terms and provisions of the Lease, and amend
the Lease upon the terms and conditions hereinafter set
forth.
NOW,
THEREFORE ,
in consideration of the agreements of the parties set forth herein
and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and subject to the
satisfaction of the Surrender Conditions, Landlord and Tenant
hereby agree as follows:
1.
Capitalized terms used
herein and not otherwise defined herein shall have the meanings
ascribed to them in the Lease.
2.
As used herein, the term
“Surrender Date” shall mean that certain date on or
prior to January 1, 2009 on which Tenant has voluntarily and
unconditionally surrendered all rights of possession in the
Surrender Premises to Landlord. The term “Surrender
Conditions” shall mean: (i) Landlord is in possession of the
Surrender Premises and (ii) Tenant has voluntarily and
unconditionally surrendered all rights of possession in the
Surrender Premises to Landlord and (iii) Tenant, at its sole risk,
cost and expense, has voluntarily and unconditionally vacated the
Surrender Premises and removed all of its personal property,
furniture, equipment and trade fixtures from the Surrender
Premises. If any of the Surrender Conditions are not satisfied on
the Surrender Date, Landlord expressly reserves the right to cancel
this Agreement upon written notice to Tenant.
3.
It is agreed and
understood that Landlord, in its sole and absolute discretion, may
waive, in whole or in part, all or any of the Surrender Conditions
at any time. On or prior to the Surrender Date, Tenant shall vacate
the Surrender Premises voluntarily and unconditionally and,
effective as of the Surrender Date, Tenant shall have no further
rights to use or occupy the Surrender Premises nor any rights with
respect to the Surrender Premises of any kind or nature. Tenant, at
its sole risk, cost and expense, shall remove all of its personal
property, furniture, equipment and trade fixtures from the
Surrender Premises on or prior to the Surrender Date. Landlord is
hereby released to lease all or any portion of the Surrender
Premises without regard to any rights or claims of
Tenant.
4.
Nothing contained herein
shall be deemed or construed as a release or waiver of any of the
terms or provisions of the Lease which, according to the terms of
the Lease, survive expiration or earlier termination of the
Lease.
5.
Notwithstanding the
foregoing to the contrary, as to the Surrender Premises. Tenant
shall remain liable for (i) any rent and additional rent due and
payable through the Surrender Date and (ii) any additional rent
including, without limitation, additional rent for Operating
Expenses and Taxes for the period prior to the Surrender Date which
Landlord may invoice after the Surrender Date. Tenant hereby
releases Landlord from and against any and all claims or causes of
action arising out of the Lease and Tenant’s use and
occupancy of the Surrender Premises.
6.
Tenant expressly
acknowledges and agrees that: (i) Tenant has voluntarily and
unconditionally surrendered any and all right, title and interest
including, without limitation, the right of possession, with
respect to the Surrender Premises to Landlord as of the Surrender
Date, and Tenant further surrenders any and all claims that the
Tenant may have with respect to the Surrender Premises and any and
all personal property, furniture, equipment and fixtures therein
and (ii) as to the Original Premises, Tenant expressly waives and
releases Landlord and its successors and assigns from any and all
claims, causes of action or liability whatsoever that Tenant may
now have or may hereafter have against the Landlord and its
successors and assigns under the Lease, at law or in
equity.
7.
Subject to the
satisfaction of the Surrender Conditions, after the Surrender Date,
the Surrender Premises shall no longer be a portion of the
“Premises” under the Lease, and Tenant covenants and
agrees to observe, perform and comply with all the terms,
provisions, agreements, covenants and conditions of the Lease, as
amended by this Agreement, as they now apply to the Surrender
Premises.
8.
The Term shall be
extended for the period of three (3) years commencing on December
22, 2008 through and including December 21, 2011, unless sooner
terminated in accordance with the terms and provisions of the
Lease.
9.
During the Extended
Term, Basic Rent shall be payable as follows” (i) commencing
on December 22, 2008 through ad including December 21, 2009, the
annual Basic Rent shall be $345,600.00 payable in equal monthly
installments of $28,800.00 per month; (ii) commencing on December
22, 2009 through and including December 21, 2010, the annual Basic
Rent shall be $352,800.00 payable in equal monthly installments of
$29,400.00 per month; and commencing on December 22, 2010 through
and including December 21, 2001, the annual Basic Rent shall be
$360,000.00 payable in equal monthly installments of $30,000.00 per
month. All Basic Rent shall be payable in accordance with the terms
and provisions of the Lease, as amended by this Agreement, and
shall be payable without notice, offset, abatement, deduction or
demand.
10.
During the Extended
Term, Base Taxes shall be Taxes for the fiscal year July 1, 2008
through and including June 30, 2009, as the same may be
abated.
11.
During the Extended
Term, Base Operating Expenses shall be Operating Expenses for
calendar year ending December 31, 2008.
12.
During the Extended
Term, Base Utility Expenses shall by Utility Expenses for calendar
year ending December 31, 2008.
13.
During the Extended
Term, if, during any portion of the Operating Year for which
Operating Expenses are being computed, less than all of the
Building Rentable Area was occupied by tenants or if Landlord is
not supplying all tenants with services being supplied under the
Lease, actual Operating Expenses incurred shall be
reasonably extrapolated
by Landlord on an item by item basis to the estimated Operating
Expenses that would have been incurred if the Building were 95%
occupied for such Year and such services were being supplied to all
tenants, and such extrapolated amount shall, for purposes hereof,
be deemed to be the Operating Expenses for the Year.
14.
During the Extended
Term, if, during any portion of the Operating Year for which
Utility Expenses are being computed, less than all of the Building
Rentable Area was occupied by tenants or if Landlord is not
supplying all t
