Nautilus 2009 Annual Report Download - page 259

28.2 Estoppel Certificates
. Within ten (10) days after written request from Landlord, Tenant shall execute and deliver to Landlord, or
Landlord’s designee, a written statement certifying (a) that this Lease is unmodified and in full force and effect or is in full force and effect as
modified and stating the modifications; (b) the amount of Base Rent and the date to which Base Rent and Additional Rent have been paid in
advance; (c) the amount of any security deposit with Landlord; (d) that Landlord is not in default hereunder or, if Landlord is claimed to be in
default, stating the nature of any claimed default; and (e) such other matters as may be requested. Landlord and any purchaser, assignee, or
Mortgagee may rely upon any such statement. Tenant’
s failure to execute and deliver such statement within the time required shall be conclusive
against Tenant (1) that this Lease is in full force and effect and has not been modified except as represented by Landlord; (2) that there are no
uncured defaults in Landlord’s performance and that Tenant has no right of offset, counterclaim, or deduction against Rent; (3) not more than
one (1) month’
s Rent has been paid in advance; and (4) as to the truth and accuracy of any other matters set forth in the statement as submitted to
Tenant.
28.3 Notice and Cure Rights . Tenant agrees to notify any Mortgagee whose address has been furnished to Tenant, of any notice of
default served by Tenant on Landlord. If Landlord fails to cure such default within the time provided for in this Lease, such Mortgagee shall
have an additional thirty (30) days to cure such default; provided that, if such default cannot reasonably be cured within that thirty (30) day
period, then such Mortgagee shall have such additional time to cure the default as is reasonably necessary under the circumstances.
28.4 Changes Requested by Mortgagee . Tenant shall not unreasonably withhold its consent to changes or amendments to this Lease
requested by a Mortgagee, so long as such changes do not alter the basic business terms of this Lease or otherwise materially diminish any rights
or materially increase any obligations of Tenant.
ARTICLE 29
MISCELLANEOUS
29.1 Quiet Enjoyment . Tenant, upon paying the Rent and performing all of its obligations under this Lease, shall peaceably and
quietly enjoy the Premises, subject to the terms of this Lease and to any mortgage, deed of trust, lease, or other agreement to which this Lease
may be subordinated.
29.2 [ INTENTIONALLY DELETED ]
29.3 Force Majeure
. Any prevention, delay, or stoppage of work to be performed by Landlord or Tenant that is due to Force Majeure
shall excuse performance of the work by that party for a period equal to the duration of that prevention, delay, or stoppage. Nothing in this
Section 29.3 shall excuse or delay Tenant’s obligation to pay Rent or other charges under this Lease.
29.4 Accord and Satisfaction; Allocation of Payment
. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent
provided for in this Lease shall be deemed to be other than on account of the earliest due Rent; nor shall any endorsement or statement on any
check or letter accompanying any check or payment as Rent be deemed an accord and satisfaction. Landlord may accept such check or payment
without prejudice to Landlord’s right to recover the balance of the Rent or pursue any other remedy provided for in this Lease. In connection
with the foregoing, Landlord shall have the absolute right in its sole discretion to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
29.5 Attorneys’ and Other Fees . Should either party institute any action or proceeding to enforce or interpret this Lease or any
provision hereof, for damages by reason of any alleged breach of this Lease or of any provision hereof, or for a declaration of rights hereunder,
the prevailing party in any such action or proceeding shall be awarded from the other party all costs and expenses, including, without limitation,
attorneys’ and other fees, reasonably incurred in good faith by the prevailing party in connection with such action or proceeding. The term
“attorneys’ and other fees” shall mean and include reasonable attorneys’ fees, accountants fees, expert witness fees and any and all consultants
and other similar fees incurred in connection with the action or proceeding and preparations therefor. The term “action or proceeding” shall
mean and include actions, proceedings, suits, arbitrations, appeals and other similar proceedings.
29.6 Construction . Headings at the beginning of each Article, Section and subsection are solely for the convenience of the parties
only and in no way define, limit, or enlarge the scope or meaning of this Lease. Except as otherwise provided in this Lease, all exhibits referred
to herein are attached hereto and are incorporated herein by this reference. This Lease shall not be construed as if either Landlord or Tenant had
prepared it, but rather as if both Landlord and Tenant had prepared it.
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