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.