Nautilus 2009 Annual Report Download - page 237

replacement of building standard surfaces, including but not limited to wall and floor coverings, ceiling tiles, window coverings and fixtures; l)
maintenance and replacement of curbs and walkways; m) repair to and replacement of the roof; n) rental expenses for (or a reasonable
depreciation allowance on) personal property used in maintenance, operation or repair of the Premises; o) licenses, certificates, permits and
inspections and the cost of contesting the validity or applicability of any governmental enactments that may affect Operating Costs; p) any costs,
expenditures, or charges (whether capitalized or not) required by any governmental or quasi-governmental authority; and q) amortization of
capital expenses (including, without limitation, financing costs) (A) that are required under any Law, or (B) that are in Landlord’s opinion
necessary to maintain the Premises, or any portion thereof, in good condition and repair; provided that such cost shall be amortized (including
interest on the unamortized cost) over its useful life as Landlord shall reasonably determine. Notwithstanding the foregoing, for purposes of this
Lease, Operating Costs shall not include:
2.16.1 Utilities or services sold to Tenant or others for which Landlord is entitled to and actually receives reimbursement (other
than through any operating cost reimbursement provision similar to the provisions set forth in this Lease);
2.16.2 Depreciation and amortization, except on materials, small tools and supplies purchased by Landlord to enable Landlord
to supply services Landlord might otherwise contract for with a third party, where such depreciation and amortization would otherwise
have been included in the charge for such third party services, all as determined in accordance with sound real estate management
principles;
2.16.3 Overhead or any profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for services in or in
connection with the Buildings to the extent the same exceeds the cost of such services that could be obtained from equally qualified third
parties on a competitive basis or at market rates;
2.16.4 Except as otherwise specifically provided in this Section, interest on debt or amortization on any mortgages, other
charges, costs and expenses payable under any mortgage, if any, and costs for financing and refinancing the Premises;
2.16.5 Ground rents;
2.16.6 Rentals and other related expenses incurred in leasing equipment, the cost of which would otherwise be excluded capital
expenses hereunder, except equipment used in case of emergency;
2.16.7 Electrical power for which Tenant directly contracts with and pays an electrical service company;
2.16.8 Marketing costs, including leasing commissions, attorneys’ fees in connection with the negotiation and preparation of
letters, deal memos, letters of intent, leases, subleases and/or assignments, space planning costs, and other costs and expenses incurred in
connection with lease, sublease or assignment negotiations and transactions with prospective tenants of the Premises or any of the
Buildings, including attorneys’ fees and other costs and expenditures incurred in connection with disputes with such prospective tenants;
2.16.9 Costs covered by insurance, to the extent of the insurance proceeds actually received by Landlord;
2.16.10 Costs covered by warranties, to the extent of the amount actually paid under the warranty;
2.16.11 Any service provided directly to and paid directly by the tenant; and
2.16.12 Wages and benefits of any employee who does not devote substantially all of his or her employed time to the Buildings
unless such wages and benefits are prorated to reflect time spent on operating and managing the Building vis-a-vis time spent on matters
unrelated to operating and managing the Buildings.
2.17 Permitted Transfer . The transfer of ownership interests in a publicly traded entity, a transfer in connection with a sale of
substantially all of the assets of Tenant as a going concern, a merger or consolidation of Tenant with another entity, and an assignment or
subletting of all of the Premises to an Affiliate of Tenant, where (a) the transferee assumes, in full, the obligations of Tenant under this Lease;
(b) Tenant remains fully liable under this Lease; (c) the use of the Premises remains unchanged; (d) after such transaction is effected, the
tangible net worth of the tenant
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