Nautilus 2009 Annual Report Download - page 255

20.8 Counterclaim . Tenant hereby waives any right to plead any counterclaim, offset or affirmative defense in any action or
proceedings brought by Landlord against Tenant for possession of the Premises or otherwise, for the recovery of possession based upon the non-
payment of Rent or any other Default. The foregoing shall not, however, be construed as a waiver of Tenant’s right to assert any claim in a
separate action brought by Tenant against Landlord. In the event Tenant must, because of applicable court rules or statutes, interpose any
counterclaim or other claim against Landlord in such proceedings, Landlord and Tenant agree that, in addition to any other lawful remedy of
Landlord, upon motion of Landlord, such counterclaim or other claim asserted by Tenant shall be severed from the proceedings instituted by
Landlord (and, if necessary, transferred to a court of different jurisdiction), and the proceedings instituted by Landlord may proceed to final
judgment separately and apart from and without consolidation with or reference to the status of any such counterclaim or any other claim
asserted by Tenant.
20.9 Mitigation of Damages . Both Landlord and Tenant shall each use commercially reasonable efforts to mitigate any damages
resulting from a default of the other party under this Lease; provided that any failure by Landlord to mitigate damages in accordance with the
foregoing shall not give rise to any liability of Landlord for breach of this Lease, but shall only serve to reduce the recovery by Landlord by the
amount of damages that Tenant proves could reasonably have been avoided. Subject to the foregoing, Landlord’s obligation to mitigate damages
after a Default shall be satisfied in full if Landlord undertakes to lease the Premises to another tenant (a “Substitute Tenant”) in accordance with
the following criteria:
20.9.1 Landlord shall have no obligation to solicit or entertain negotiations with any Substitute Tenant until Landlord obtains
full and complete possession of the Premises including, without limitation, the final and unappealable legal right to relet the Premises free
of any claim of Tenant.
20.9.2 Landlord shall not be obligated to lease the Premises to a Substitute Tenant for a rental amount less than the greater of
(a) the current fair market rental then prevailing for similar uses in comparable buildings in the same market area as the Premises, and
(b) the rental rate payable under this Lease.
20.9.3 Landlord shall not be obligated to enter into a lease with any Substitute Tenant whose use would:
20.9.4 Landlord shall not be obligated to enter into a lease with any Substitute Tenant that does not have, in Landlord’s
reasonable opinion, sufficient financial resources or operating experience to operate the Premises in a first-class manner.
20.9.5 Landlord shall not be required to expend any amount of money to alter, remodel, or otherwise make the Premises
suitable for use by a Substitute Tenant unless:
20.10 Upon compliance with the above criteria regarding the releasing of the Premises after a Default, Landlord shall be deemed to
have fully satisfied Landlord’s obligation to mitigate damages under this Lease and under any Law, and Tenant waives and releases, to the
fullest extent legally permissible, any right to assert in any action by Landlord to enforce the terms of this Lease, any defense, counterclaim, or
rights of setoff or recoupment respecting the mitigation of damages by Landlord, unless and to the extent Landlord maliciously or in bad faith
fails to act in accordance with the requirements of this Section. Until Landlord is able, through such efforts, to relet the Premises, Tenant must
pay to Landlord, on or before the first day of each calendar month, the monthly Rent and any other charges provided in this Lease. No such
reletting shall be construed as an election on the part of Landlord to terminate this Lease unless Landlord gives Tenant a notice of such intention.
Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous
breach.
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1.
Violate any restriction, covenant, or requirement contained in any other agreement to which Landlord is a party;
2.
Be inconsistent with the Permitted Use.
1.
Tenant pays any such sum to Landlord in advance of Landlord
’
s execution of a lease with such Substitute Tenant
(which payment shall not be in lieu of any damages or other sums to which Landlord may be entitled as a result of
Tenant
’
s Default); or
2.
Landlord determines that any such expenditure is financially justified in connection with entering into any such
lease.