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