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.


 


2

















 


(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.


 


3

















 


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 of 9/90 Crossing
relative to the removal of NMS’s personalty from the Premises and the storage
and/or disposal thereof, provided, that, NMS’ liability hereunder for such
damages shall in no event exceed an amount equal to the difference between (a) 
$6,390,000, less (b) the sum of (x) the amount of any Termination
Payments actually paid to 9/90 Crossing with no potential claim or right for
the recovery of any such Termination Payment or disgorgement thereof by 9/90
Crossing under applicable law, plus (y) any rent actually received by 9/90
Crossing for any reletting of the Premises before what would have been the
expiration of the term of the Lease after payment of any and all expenses
incurred by 9/90 Crossing arising out of or relating to such reletting.  If NMS’ failure to vacate and surrender the
Premises as required hereunder results in any tenant under a lease replacing
NMS after the termination of the Lease having a right to terminate its lease,
9/90 Crossing shall use reasonable efforts to relet the Premises, provided that
9/90 Crossing may relet the Premises or any part or parts thereof for a term or
terms at 9/90 Crossing’s option and may grant such concessions and free rent as
9/90 Crossing in its reasonable judgment considers advisable or necessary to
relet the same and no action of 9/90 Crossing in accordance with the foregoing
or, having used such efforts, failure to relet or to collect rent under
reletting shall operate or be construed to release or reduce the liability of
NMS hereunder for such failure to vacate and surrender the Premises as required
hereunder.   In no event shall any failure
of NMS to vacate the Premises or any acceptance by 9/90 Crossing of any amounts
paid hereunder for such failure to surrender the Premises be deemed to be a
consent to such occupancy or be deemed to create a tenancy-at-will or any other
tenancy.    If NMS fails to surrender the
Premises to 9/90 Crossing 


 


4

















 


on or before the Termination
Date in the Surrender Condition, then 9/90 Crossing may elect (in 9/90 Crossing’s
sole and absolute discretion exercised by delivering written notice of such
election to NMS) to cause the expiration of the term of the Lease to be amended
to the date set forth in the Lease without regard to the amendment of such
expiration date herein to the Termination Date, whereupon the expiration of the
term of the Lease shall, without further action of the parties, be so revised
and NMS shall be relieved of any Termination Payments thereafter due hereunder
with this Agreement having no further effect on the Lease, and any Termination
Payments made shall be applied by 9/90 Crossing (a) first to any and all
of 9/90 Crossing’s costs (including, without limitation, reasonable allocated
fees of in-house counsel of 9/90 Crossing’s manager) relating to the
preparation and negotiation of this Agreement, any and all other agreements
between 9/90 Crossing or any affiliate thereof, NMS and Dialogic relating to
the relocation of Dialogic’s personal property, and any lease with the tenant
intended to replace NMS  after the
termination of the Lease, and (b) second to reduce any amounts due under
the Lease.   The specified remedies to
which 9/90 Crossing may resort hereunder are not intended to be exclusive of
any remedies or means of redress to which 9/90 Crossing may at any time be
entitled lawfully, and 9/90 Crossing may invoke any remedy (including the
remedy of specific performance) allowed at law or in equity as if specific
remedies were not herein provided for.


 


9.                                       Acknowledgements.  NMS agrees that, to its actual knowledge, as
of the date hereof 9/90 Crossing has fulfilled all of its obligations under the
Lease and is not in default thereof.  NMS
hereby acknowledges that no security deposit exists with respect to the
Lease.  9/90 Crossing agrees that, to its
actual knowledge, as of the date hereof NMS has fulfilled all of its
obligations under the Lease and is not in default thereof.


 


10.                                 Termination
Payments.  From and after the date
hereof, on the dates specified below, NMS shall make the following payments to
9/90 Crossing (collectively, the “Termination Payments”):


 


(a)                                  Simultaneously
with the execution of this Agreement, $250,000;


 


(b)                                 for
the period commencing on January 1, 2009 through May 31, 2009,
monthly payments (x) in the amount of $170,833.33, payable on January 1,
2009 and on the first day of each calendar month thereafter through April 1,
2009; and (y) in the amount of $177,500 on May 1, 2009;


 


(c)                                  On
or before January 31, 2009, $250,000;


 


(d)                                 On
or before April 1, 2009, $750,000;


 


(e)                                  the Additional
Termination Payment (as hereinafter defined) on the dates and in accordance
with the terms hereinafter set forth in this Section 10; and


 


(f)                                    On
or before January 1, 2010, $750,000.


 


9/90 Crossing’s affiliate, NDNE 9/90 200
Crossing Boulevard LLC, a Massachusetts limited liability company (“200
Crossing”), owns the adjacent property known as and numbered 200 Crossing
Boulevard located in Framingham, Massachusetts (the “200 Crossing Property”).  NMS currently leases certain space in the
building located at the 200 Crossing Property pursuant to that certain Lease
dated April 1, 2000, as amended (the “200 Crossing Lease”).  9/90 Crossing 


 


5

















 


agrees to
cause 200 Crossing to use reasonable efforts, at no cost or expense to either
9/90 Crossing or 200 Crossing, to obtain the approval of the current holder of
the mortgage encumbering the 200 Crossing Property to release to 9/90 Crossing
the security deposit paid by NMS under the 200 Crossing Lease and held by 200
Crossing in the amount of $500,000 (the “200 Crossing Security Deposit”).  If 200 Crossing is able to obtain such
approval, 9/90 Crossing will cause 200 Crossing to release the 200 Crossing
Security Deposit and deliver the same to 9/90 Crossing, and 9/90 Crossing shall
be entitled to retain the 200 Crossing Security Deposit as its property as an
additional termination payment in the amount of $500,000 (the “Additional
Termination Payment”), with NMS having no further right, title or interest in
or to the 200 Crossing Security Deposit pursuant to the 200 Crossing Lease or
otherwise.  If 200 Crossing is unable to
obtain such approval on or before the Termination Date, NMS shall make the
Additional Termination Payment by paying 9/90 Crossing equal monthly
installments in the amount of $22,727.84, commencing on
May 1, 2009 and on the first day of each calendar month thereafter through
and including April 1, 2011, representing the monthly amount necessary to
amortize the Additional Termination Payment over a two-year payment period at
an 8.5% per annum interest rate.


 


Notwithstanding anything contained in the
foregoing to the contrary, NMS shall have the right to pre-pay all of the
Termination Payments in one (1) lump sum at any time after the Termination
Date with no prepayment penalty.


 


All of the Termination Payments shall be made
to 9/90 Crossing at its address set forth in the preamble of this Agreement or
such other place as 9/90 Crossing may designate in writing in immediately
available funds, without prior demand and without abatement, deduction or
offset.


 


11.                                 Event
of Default.  Any failure by NMS to
make any Termination Payment hereunder, as and when due, or any other breach by
NMS of this Agreement continuing uncured for five (5) days after written
notice to NMS shall constitute an “Event of Default” hereunder, provided, that,
no notice need be delivered with respect to any default involving the payment
of money hereunder if any such payment is late after such a notice has been
delivered within the previous twelve (12) month period.  An “Event of Default” shall also be deemed to
occur if (i) NMS shall make an assignment for the benefit of creditors or
shall be adjudicated insolvent, or shall file any petition or answer seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future Federal,
State or other statute, law or regulation for the relief of debtors (other than
the Bankruptcy Code, as hereinafter defined), or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of NMS or
of all or any substantial part of its properties, or shall admit in writing its
inability to pay its debts generally as they become due, or (ii) an Event
of Bankruptcy (as hereinafter defined) shall occur with respect to NMS, or (iii) 
a petition shall be filed against NMS under any law (other than the Bankruptcy
Code, as hereinafter defined) seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under
any present or future Federal, State or other statute, law or regulation and
shall remain undismissed or unstayed for an aggregate of sixty (60) days
(whether or not consecutive), or if any trustee, conservator, receiver or
liquidator of NMS or of all or any substantial part of its properties shall be
appointed without the consent or acquiescence of NMS and such appointment shall
remain unvacated or unstayed for an aggregate of sixty (60) days (whether or
not consecutive).  As used herein, an “Event of Bankruptcy” means the filing of a voluntary petition
by NMS, or the entry of an order for relief against NMS, 


 


6

















 


under Chapter 7, 11, or 13 of
the Bankruptcy Code, and the term “Bankruptcy
Code” means 11 U.S.C §101, et
seq.


 


In the event of the occurrence of an Event of Default hereunder, all of
the Termination Payments hereunder, plus interest and late fees payable
hereunder (less any payments made to the date of acceleration) shall become
immediately due and payable.


 


If NMS shall fail to pay any amount due
hereunder (including, without limitation, the Termination Payments accelerated
in accordance with Section 11 hereof), the overdue amount shall bear
interest at the lesser of twelve (12%) percent per annum or the maximum per
annum rate permitted by law, calculated from such date until the date of
payment to 9/90 Crossing, in addition to which NMS shall pay a late fee equal
to four (4%) percent of the amount overdue, provided, that, such late fee shall
not apply to any late payment in any one (1) instance in any twelve
(12)-month period provided that 9/90 Crossing receives the late payment within
five days of written notice of such delinquency delivered by 9/90 Crossing to
NMS.  Neither 9/90 Crossing’s acceptance
of any payment of interest or delivering any such notice of non-payment shall
constitute a waiver of NMS’ default with respect to the overdue amount.


 


12.                                 Jurisdiction/Venue.  9/90 Crossing and NMS agree that any legal
action commenced to interpret or enforce this Agreement, or otherwise arising
out of this Agreement, shall be maintained in the courts of the county in which
the Property is located.


 


13.                                 Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
collectively shall constitute one and the same instrument.


 


14.                                 Amendment.  This Agreement may not be amended except by a
writing signed by both parties.


 


15.                                 Governing
Law.  This Agreement shall be
governed by the laws of the state in which the Property is located, without
regard to conflict of laws.


 


16.                                 Entire
Agreement.  This Agreement represents
the entire understanding between the parties with respect to the matters herein
contained.  The submission of this
document shall not be deemed an offer or option.  Submission of this Agreement for examination
or signature is without prejudice and does not constitute a reservation, option
or offer, and this Agreement shall not be effective until execution and
delivery by all parties.


 


17.                                 Paragraph
Headings and Interpretation of Sections. 
The paragraph and section headings throughout this Agreement are for
convenience and reference only, and the words contained therein shall in no way
be held to explain, modify, amplify or aid in the interpretation, construction
or meaning of the provisions of this Agreement. The provisions of this
Agreement shall be construed as a whole, according to their common meaning
(except where a precise legal interpretation is clearly evidenced), and not for
or against either party.


 


18.                                 Notices.  Any and all notices, demands or requests
permitted or required to be made under this Agreement shall be in writing,
signed by the party giving such notice, and shall be delivered personally or
sent by overnight delivery by FedEx, UPS, DHL, or any similar service requiring
a receipt, to the other party at the address set forth below, or to such other
party or such other address within the continental United States as may have
theretofore been 


 


7

















 


designated in writing.  The date of receipt of such notice, election
or demand or request shall be the earliest of (a) the date of actual
receipt of same, (b) one (1) day after the date of mailing thereof by
express mail or the delivery (or redelivery) to FedEx or another similar
service requiring a receipt, or (c) the date of personal delivery (or
refusal upon presentation for delivery) thereof, if applicable.  For the purposes of this Agreement, the
following addresses are applicable:


 


To 9/90 Crossing:


 


NDNE 9/90 Crossing Limited Liability Company


c/o National Development


2310 Washington Street


Newton, Massachusetts  02462


	
  Attn:

  	
   

  	
  John J. O’Neil, III

  
	
   

  	
   

  	
  and Mark Paris

  
	
  Telephone:

  	
   

  	
  (617) 527-9800

  



 


With a copy to:


 


NDNE 9/90 Crossing Limited Liability Company


c/o National Development


2310 Washington Street


Newton, Massachusetts  02462


	
  Attn:

  	
   

  	
  Richard Schwartz, Esquire

  
	
  Telephone:

  	
   

  	
  (617) 559-5190

  



 


To NMS:


 


LiveWire Mobile, Inc.


One Monarch Drive, Suite 203


Littleton MA 01460


Attn:                    Todd
Donahue, CFO


Telephone:  978 742-3100


 


With a copy to:


 


Goodwin Procter LLP


Exchange Place


53 State Street


Boston MA


Attn:                    James
Kasinger, Esquire


Telephone: 617-570-1104


 


8

















 


19.                                 Bind
and Inure; Transfers.  This Agreement
shall be binding upon, and shall inure to the benefit of, 9/90 Crossing and
NMS, and their respective successors and assigns; provided that NMS shall not
assign, pledge or otherwise transfer this Agreement or any interest herein
without the prior written consent of 9/90 Crossing, which consent may be
granted or withheld in its sole and absolute discretion.


 


20.                                 Time
of Essence.  Time is of the essence
of all of NMS’s obligation hereunder including, without limitation, its
obligation to fully vacate and surrender the Premises when required hereunder
and its obligation to timely pay the Termination Payments to 9/90 Crossing.


 


21.                                 Confidentiality.   
Neither party shall, without the other party’s written consent, disclose
the existence of this Agreement or any of the information set forth herein, all
of which is intended to be private and confidential; provided, however, that
the existence of this Agreement and the contents hereof may be disclosed (a) to
9/90 Crossing’s lenders and brokers and the counsel, accountants and other
agents of either party who require such information to advise the disclosing
party relating to the transaction referenced herein, provided, that the
disclosing party shall instruct such parties to maintain such information in
confidence, or (b) to the extent disclosure is required pursuant to
applicable laws, regulations, codes, orders, ordinances, rules and
statutes now or hereafter in effect or court order or to enforce this
Agreement.  Without limiting any other
remedies available at law or in equity, neither party shall be liable under
this paragraph for any consequential damages.


 


22.                                 Attorneys’
Fees.  NMS agrees to pay all costs
and expenses reasonably incurred by 9/90 Crossing in connection with collection
of past due amounts under this Agreement and its enforcement of this Agreement,
including, without limitation, all reasonable attorneys’ fees and costs
incurred in connection therewith and the collection of any Termination
Payments, in all cases, whether or not suit is instituted.


 


23.                                 Lease Obligations Unaffected through
Termination Date.  Except as expressly amended hereby, all of
the terms and provisions of the Lease, as heretofore amended, shall continue in
full force and effect and unmodified up to and including the Termination Date
and thereafter to the extent of the Surviving Obligations or as otherwise
provided in the last sentence of Section 8 of this Agreement.   Without limiting the foregoing, nothing set
forth herein shall affect (a) NMS’ obligation to pay Annual Fixed Rent,
Additional Rent and any other amounts due 9/90 Crossing when due under the
Lease up to and including the Termination Date, or (b) any of NMS’ other
obligations or liabilities under the Lease or any of the rights or remedies of
the parties under the Lease, including, without limitation, 9/90 Crossing’s
rights upon any event of default by NMS prior to the Termination Date or with
respect to the Surviving Obligations.


 


[SIGNATURES ON FOLLOWING PAGE]


 


9

















 


IN WITNESS WHEREOF, 9/90 Crossing and NMS
have executed this Agreement, under seal, as of the date first above set forth.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
   

  	
  NDNE 9/90 CROSSING LIMITED LIABILITY
  COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  NDNE 9/90, Inc., its
  manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Thomas M. Alperin

  
	
   

  	
  Name:

  	
  Thomas M. Alperin

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LIVEWIRE MOBILE, INC. (f/k/a NMS COMMUNICATIONS CORPORATION or
  NATURAL MICROSYSTEMS CORPORATION), a Delaware
  corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Todd Donahue

  
	
   

  	
  Name:

  	
  Todd Donahue

  
	
   

  	
  Title:

  	
  CFO

  
				



 


10