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