Exhibit 10.1
LEASE
TERMINATION
AND TERMINATION PAYMENT
AGREEMENT
THIS LEASE TERMINATION AND
TERMINATION PAYMENT AGREEMENT (this “ Agreement
”) is entered into as of the 30th day of December, 2008, by
and between NDNE 9/90 CROSSING LIMITED LIABILITY COMPANY, a
Massachusetts limited liability company (“ 9/90
Crossing ”), and LiveWire Mobile, Inc. (f/k/a NMS
COMMUNICATIONS CORPORATION or NATURAL MICROSYSTEMS CORPORATION), a
Delaware corporation (for purposes of this Agreement, hereinafter
referred to as “ NMS ”).
Recitals
A.
9/90 Crossing is
the owner of certain real property known as and numbered 100
Crossing Boulevard located in Framingham, Massachusetts (the
“ Property ”), and the building thereon (the
“ Building ”);
B.
9/90 Crossing, as
landlord, and NMS, as tenant, entered into that certain Lease
Agreement dated September 30, 1996, as amended by First
Modification of Lease dated January 21, 1998, as further
amended by Second Modification of Lease dated March 15, 2000
(as so amended, the “ Lease ”) with respect to
NMS’s occupancy of the Building (the “ Premises
”) which Lease has a term through May 31, 2012;
and
C.
9/90 Crossing and
NMS each desire that the Lease be terminated effective as of the
Termination Date (as such term is hereinafter defined), upon the
terms and conditions set forth herein, and that NMS make certain
payments to 9/90 Crossing from and after the Termination
Date.
NOW THEREFORE, in consideration of
the presents herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, NMS specifically acknowledging that it is
benefiting from the within agreement by 9/90 Crossing agreeing to
terminate the Lease, and that 9/90 Crossing will only agree to such
termination in consideration of NMS agreeing to make the
Termination Payments (as such term is hereinafter defined) and such
other agreements as herein provided, 9/90 Crossing and NMS agree as
follows:
Agreement
1.
Recitals
. The
parties acknowledge that the recitals above set forth are true and
correct and are incorporated herein by reference.
2.
Vacation
. NMS
agrees to use all reasonable efforts to fully vacate the Premises
on or before December 31, 2008 and if, having used such
efforts, NMS is unable to fully vacate the Premises on before such
date to contract within the Premises on and after such date in
order to permit 9/90 Crossing to commence work to prepare the
Premises for occupancy for another tenant after the termination of
the Lease as provided hereby. On and after the date hereof,
9/90 Crossing may commence such work within any portion of the
Premises currently vacant and within any such portion of the
Premises vacated by NMS after the date hereof.
Notwithstanding anything to the contrary herein, NMS agrees to
fully vacate the Premises on or before January 19, 2009, and
to surrender the same to 9/90 Crossing in the condition required
under this
Agreement (the earlier of
(a) the date NMS fully vacates the Premises and surrenders the
same in such condition and (b) January 19, 2009 is
referred to herein as the “Termination
Date”).
3.
Termination
Agreement . 9/90 Crossing and NMS
hereby agree that, unless sooner terminated in accordance with the
terms of the Lease, the Lease is hereby terminated, effective as of
the Termination Date just as if the Termination Date were the date
originally set for expiration of the term of the Lease, upon the
terms and conditions herein set forth.
4.
Representations and
Warranties .
(a)
NMS
Representations and Warranties . As a material
inducement for 9/90 Crossing to enter into this Agreement, NMS
represents and warrants to 9/90 Crossing as of the date hereof, and
as of the Termination Date, as follows:
i.
NMS is the sole owner of the
tenant’s interest in the Lease, and such interest (including,
without limitation, any and all rights arising out of the Lease)
has not been assigned, nor have the Premises been sublet or other
occupancy right granted to any party whatsoever in whole or in part
with respect to the Premises, except that NMS has licensed the
Premises to Dialogic, Inc., by License dated December 5,
2008, in connection with the sale by NMS to Dialogic of NMS’
communication-platform business in order to permit the orderly
removal of Dialogic’s personal property from the
Premises.
ii.
No security interest exists relating
to NMS’ interest in the Lease or any of the personal property
currently located at the Premises other than security interests in
NMS’ personal property held by Silicon Valley Bank, which
security interest does not grant such Bank any right to access the
Premises or give such Bank any rights in or to any personal
property that is required to be yielded up in accordance with the
Lease or this Agreement.
iii.
The execution and delivery by NMS of
this Agreement and the performance by NMS of its obligations
hereunder have been duly authorized by all required corporate
action and this Agreement constitutes the valid and binding
obligation of NMS enforceable in accordance with its
terms.
iv.
Any permission, approval, joinder or
consent by third parties required in order for NMS to consummate
its obligations under this Agreement has been received.
v.
NMS confirms that 9/90 Crossing has
previously released to NMS, in accordance with the terms of the
Lease, any security deposit delivered thereunder and that 9/90
Crossing has no further obligation to account to NMS
therefor.
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(b)
9/90 Crossing
Representations and Warranties . As a material
inducement for NMS to enter into this Agreement, 9/90 Crossing
represents and warrants to NMS, as of the date hereof as follows,
which representations and warranties shall also be true and correct
as of the Termination Date except for those made below “as of
the date hereof”:
i.
9/90 Crossing is, as of the date
hereof, the sole owner of the landlord’s interest in the
Lease, subject only to any collateral assignment and related rights
granted to any mortgage lender currently holding a mortgage on the
Premises. The execution and delivery by 9/90 Crossing of this
Agreement and the performance by 9/90 Crossing of its obligations
hereunder have been duly authorized by all required corporate
action and this Agreement constitutes the valid and binding
obligation of 9/90 Crossing enforceable in accordance with its
terms.
ii.
Any permission, approval, joinder or
consent by third parties required in order for 9/90 Crossing to
consummate its obligations under this Agreement has been
received.
5.
Surviving
Obligations . Notwithstanding any
provisions herein or in the Lease to the contrary, and without
limiting any other obligations of either party hereunder
(including, without limitation, the obligation to make the
Termination Payments as herein provided) the following obligations
of NMS and 9/90 Crossing shall survive the termination of the Lease
(the “ Surviving Obligations ”): (1) those
obligations which expressly are specified in the Lease to survive
the expiration or earlier termination of the Lease, and
(2) any obligation of either party in the Lease or in this
Agreement to release, indemnify, defend or hold the other party
harmless, but only for incidents which occurred, in whole or in
part, or facts which existed, on or prior to the later of
(a) the Termination Date or (b) NMS’s vacating of
all of the Premises and surrendering same to 9/90 Crossing in
accordance with the provisions of the Lease and the provisions of
this Agreement.
6.
Condition
. The
Premises shall be delivered by NMS to 9/90 Crossing in “broom
clean” condition, free of all occupants and personal
property, with the card access security system remaining in
place and the Premises otherwise in the condition required by the
Lease and this Agreement (the “Surrender
Condition”). Notwithstanding anything in the Lease to
the contrary, NMS shall yield-up the Premises with the back-up
generator currently located thereon in place and with all fixtures,
equipment and other personal property currently located in the
cafeteria (all of which NMS hereby represents it owns free of any
lien or other security interest), which generator and such
fixtures, equipment and other personal property shall become
the property of 9/90 Crossing. If NMS fails to timely remove
its personalty from the Premises (other than such personalty
required to be yielded up with the Premises hereunder), then 9/90
Crossing may remove and store the same at NMS’ sole cost and
expense. Without limiting the foregoing,
NMS’s rights under the Lease as to the Premises shall be
terminated as of the Termination Date, and NMS shall have no
further right to occupy the same from and after the Termination
Date. NMS agrees to execute and deliver to 9/90 Crossing any
documents which 9/90 Crossing reasonably requires in order to
evidence the termination of the Lease, in recordable form, for
recording and/or filing in the county in which the Property is
located.
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7.
Release
.
Effective on and after the Termination Date, NMS hereby releases
and forever discharges 9/90 Crossing and its trustees, officers,
directors, shareholders, agents, representatives, employees,
members, managers, partners, attorneys, affiliates, subsidiaries,
parent, assigns and beneficiaries, of and from all debts, demands,
actions, causes of action, suits, accounts, covenants, contracts,
agreements, damages, and any and all claims, demands and
liabilities whatsoever of every name and nature, both at law and in
equity, which NMS then has, or ever had regarding the Lease or the
Premises except those obligations which survive pursuant to
Section 5 herein; it being the express intention of the
parties that the foregoing shall be deemed to be a full and general
release, except those obligations which survive pursuant to
Section 5 herein. Effective on and after the Termination
Date, 9/90 Crossing hereby releases and forever discharges NMS and
its trustees, officers, directors, shareholders, agents,
representatives, employees, members, managers, partners, attorneys,
affiliates, subsidiaries, parent, assigns and beneficiaries, of and
from all debts, demands, actions, causes of action, suits,
accounts, covenants, contracts, agreements, damages, and any and
all claims, demands and liabilities whatsoever of every name and
nature, both at law and in equity, which 9/90 Crossing then has, or
ever had regarding the Lease or the Premises except (a) those
obligations which survive pursuant to Section 5 herein, and
(b) the obligations of NMS hereunder (including, without
limitation, the obligation to make the Termination Payments as
herein provided).
8.
Failure by NMS
to Vacate . The
termination of the Lease shall be deemed to have occurred with
respect to the Premises as of the Termination Date. If NMS
fails to surrender the Premises to 9/90 Crossing on or before the
Termination Date in the Surrender Condition, then, notwithstanding
anything to the contrary set forth in the Lease, NMS shall be
deemed to be a tenant at sufferance with respect to any space not
so surrendered, shall pay 9/90 Crossing $1,000 per day for each day
of such delay. Without limiting the foregoing, NMS shall also
be fully liable to 9/90 Crossing for all direct, indirect and
consequential damages related to such failure to vacate and
surrender the Premises, including without limitation: (i) any
and all damages due to the inability of 9/90 Crossing to timely
deliver the Premises to any third party tenant, and (ii) all
costs and expenses o
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