OFFICE BUILDING LEASE AGREEMENT

 

 

TABLE OF CONTENTS

 

Sections		Description
1.		Definitions and Basic Provisions		1
2.		Lease Grant		3
3.		Rent		4
4.		Increases in Base Rent		6
5.		Landlord’s Obligations		7
6.		Reimbursement for Operating Costs		9
7.		Permitted Use		12
8.		Tenant’s Repairs and Alterations		13
9.		Subletting and Assigning		14
10.		Indemnity		16
11.		Subordination and Mortgagee’s Right to Cure Landlord’s Defaults		16
12.		Rules and Regulations		17
13.		Inspection		17
14.		Condemnation		17
15.		Casualty		17
16.		Holding Over		18
17.		Taxes on Tenant’s Property		18
18.		Events of Default		18
19.		Remedies		19
20.		Attorneys’ Fees		21

 

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21.	Security Interest		21
22.	Liens		21
23.	Waiver of Subrogation		21
24.	Tenant’s Insurance		21
25.	Brokerage		23
26.	Building Name		23
27.	Estoppel Certificates		23
28.	Notices		23
29.	Force Majeure		24
30.	Severability		24
31.	Amendments; Binding Effect		24
32.	Quiet Enjoyment		24
33.	Gender		25
34.	Joint and Several Liability		25
35.	Captions		25
36.	Exhibits and Attachments		25
37.	No Joint Venture		25
38.	Time of the Essence		25
39.	Evidence of Authority		25
40.	Governing Law		25
41.	Entire Agreement		25
42.	Exculpation		25
43.	Covenants are Independent		26

 

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44.	Right to Relocate		26
45	Hazardous Materials		26
46.	Waiver of Trial by Jury		28
47.	Parking		29
48.	Interpretation		29
49.	No Recordation of Lease		29
50.	Special Provisions		29

 

EXHIBIT “A”		Legal Description of Property
EXHIBIT “A-1”		Outline of Premises
EXHIBIT “B”		Special Provisions
EXHIBIT “C”		Memorandum Confirming Term
EXHIBIT “D”		Rules and Regulations
EXHIBIT “E”		Work Letter
EXHIBIT “F”		Form of In Solido Obligation and Guaranty of Lease

 

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OFFICE BUILDING LEASE AGREEMENT

 

This Office Building Lease Agreement (the “Lease”) is entered into as of the 21st day of May 2004, by and between 3445 North Causeway Limited Liability Company (“Landlord”), and YP Web Partners, LLC.

 

WITNESSETH:

 

1.                                        Definitions and Basic Provisions .  Certain definitions and provisions (the “Basic Lease Information”) of this Lease are:

 

	1.1	Lease Date:		May 21, 2004
	1.2	Tenant:		YP Web Partners, LLC
	1.3	Tenant’s Address:		3445 N, Causeway Boulevard Suite 401 Metairie, Louisiana 70002
		Contact:		Donald F. Jones
		Telephone:		504.297.2400
	1.4	Landlord:		3445 North Causeway Limited Liability Company
	1.5	Landlord’s Address:		3445 Causeway Boulevard, Suite 637 Metairie, Louisiana 70002 Attention: Property Manager
	1.8			Premises:   Suite No.  401 in the office building located at 3445 N, Causeway Boulevard (the “ Building ”), known as “3445 N. Causeway Boulevard Office Building”. The Building and the land upon which it is situated, which land is more particularly described in Exhibit “A” and Exhibit “A-l attached hereto and incorporated herein by reference, are herein sometimes collectively called the “Project”.

 

 

1.7                        Lease Term:    The period commencing on June 1, 2004, (the commencement date”), expiring on May 31, 2010 (“the expiration date”). If the Commencement Date is a date other than the first day of a month, the Lease Term shall consist of said number of months in addition to the remainder of the month in which the Commencement Date occurs.

 

1.8                        Base Rent:

 

June 1, 2004 – May 31, 2006:		$5,279.17 per month based upon $14.00 per rentable square foot, calculated on rentable square feet, plus applicable accrued escalations.
June 1, 2006 – May 31, 2007		$6,033.33   per month based upon $16.00 per rentable square foot, calculated on rentable square feet, plus applicable accrued escalations
June 1, 2007 – May 31, 2010		$6,401.42   per month based upon $17.00 per rentable square foot, calculated on rentable square feet, plus applicable accrued escalations

 

1.9                        Security Deposit:

$6,906.50

 

1.10                  Tenant’s Share: the percentage that expresses the ratio between the number of rentable square feet comprising the Premises ( 4,525 ), and the number of rentable square feet of the Building ( 127,859 ), which, for the purposes of the Lease, shall be .035391 .  Should the actual rentable square footage within the Premises be more or less than that herein stated as a result of variations resulting from actual construction and preparation of the Premises for occupancy, said rentable square footage, related Base Rent (as hereinafter defined) and Tenant’s Share shall be adjusted accordingly by an amendment to this Lease executed by Landlord and Tenant.  [In determining the number of rentable square feet comprising the Premises, the number of usable square feet therein was multiplied by 1.15.]

 

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1.11                  Permitted Use: General office purposes.

 

1.12                  Lease Year:  The period of twelve (12) months or less commencing with the Commencement Date and ending at midnight on the following December 31, each successive period of twelve (12) months thereafter during the Lease Term, and the final period of twelve (12) months or less commencing on January 1 of the year in which the Lease Term expires.  During any Lease Year within the Lease Term that is less than twelve (12) full months, any amount to be paid for such period shall be prorated, based on the actual number of months and the actual number of days of any partial month assuming each month to have thirty (30) days.

 

2.                                        Lease Grant .

 

2.1                        In consideration of the Rent (as hereinafter defined) to be paid and the other covenants and agreements to be performed by Tenant, Landlord does hereby lease, demise and let unto Tenant the Premises, shown on the plan attached hereto as Exhibit “A-l” and incorporated herein by reference, commencing on the Commencement Date and ending on the last day of the Lease Term, unless sooner terminated as herein provided.  No easement for light, air or view is granted, given or implied herein.

 

2.2                        If this Lease is executed before the Premises become vacant, or otherwise available-for occupancy, or if any tenant-or occupant of the Premises holds over, and Landlord cannot acquire possession of the-Premises-prior to the Commencement Date, or if-Landlord, for any reason whatsoever, cannot deliver possession of the Premises to-Tenant,- with the to be installed-or constructed pursuant to the Work Letter Agreement attached hereto as Exhibit “E” and incorporated-herein by reference (the “Work Letter”), substantially complete,-on the scheduled Commencement Date, this Lease-shall not be void or voidable, nor shall-Landlord-be liable to Tenant for any loss or-damage-resulting therefrom, and Tenant shall accept-possession of the Premises when-Landlord-is-able-to tender the same.  If Landlord shall be delayed-in substantially completing the Premises-as a-result of (i) Tenant’s request for materials other than Landlord’s standard, or (ii) Tenant’s-changes in the approved plans, or-(iii) delays in performance of work by a person,-firm or corporation employed by-Tenant (collectively; “Tenant’s Delay”), the scheduled Commencement Date shall not fee-postponed, and the Lease Term and Tenant’s obligation to pay Base Rent-and Additional Rent (as hereinafter-defined) shall commence as of-the-scheduled-Commencement-Date.  The taking of possession of all or any portion of the-Premises shall be deemed proof that Tenant has accepted the same as suitable for the purposes-herein-intended and-has acknowledged that-the-same comply with-Landlord’s obligations, subject only to a punch list of items to be-completed, to be generated by the architect or space planner-engaged under Exhibit “E” to this Lease immediately prior to the time Tenant takes occupancy-of-the-Premises.  Within-ten (10) days after request of Landlord, if Landlord makes such a request, Tenant shall give-Landlord a document-confirming the-Commencement

 

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Date, and certifying that Tenant-has accepted delivery of the Premises and that the condition of the Premises-complies with Landlord’s obligations hereunder.  Such document shall be in the form attached hereto as Exhibit “C” and incorporated herein-by reference. Tenant’s failure to execute and return said document within the aforesaid ten (10) -day period shall constitute an acceptance-of the document as delivered by Landlord.

 

2.2                                  If this Lease is executed before the Premises become vacant, or otherwise available for occupancy, or if any tenant or occupant of the Premises holds over, and Landlord cannot acquire possession of the Premises prior to the Commencement Date, Landlord shall not be in default hereunder, and Tenant shall accept possession of the Premises when Landlord is able to tender the same, such date shall be deemed to have accepted the same as suitable for the purposes herein intended and to have acknowledged that the same comply with Landlord’s obligations.  Within ten (10) days after request of Landlord, Tenant shall give Landlord a document confirming the Commencement Date, and certifying that Tenant has accepted delivery of the Premises and that the condition of the Premises complies with Landlord’s obligations hereunder. Such document shall be in the form attached hereto as Exhibit “B”, by this reference incorporated herein.

 

3.                                        Rent .

 

3.1                                  Tenant agrees to pay to Landlord in advance on or before the first day of each month the Base Rent, subject to adjustment as hereinafter provided, without deduction or set off, for each month of the entire Lease Term. One such monthly installment together with the Security Deposit shall be due and payable by Tenant to Landlord upon execution of this lease, and a like Each monthly installment shall be due and payable without demand on or before the first day of each calendar month succeeding the Commencement Date during the Lease Term.  Base Rent for any period of less than a full month shall be prorated, based on one thirtieth (1/30) of the current Base Rent for each day of the partial month this Lease is in effect.

 

3.2                                  In addition to and along with the monthly installments of Base Rent pursuant to Subsection 3.1 hereof, Tenant shall pay to Landlord an amount equal to the sum of all taxes on Rent, directly or indirectly imposed by any government entity (the “Rent Tax”) as Additional Rent.

 

3.3                                   If any installment of the Base Rent, or any other sums owed by Tenant to Landlord under this Lease, is not received within five (5) days after the due date thereof, without implying Landlord’s consent to such late payment, or if Landlord pays a sum on behalf of or for Tenant (which Landlord may do in Landlord’s sole and absolute discretion), and Landlord is not repaid such sum within ten (10) days after demand therefore is made, Tenant, to the extent permitted by law, agrees to pay, in addition to said installment of the Base Rent or such other sum owed, a late payment charge equal to ten percent (10%) of the installment of the Base Rent

 

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or such other sums owned.  Said late payment charge shall constitute liquidated damages and shall be for the purpose of reimbursing Landlord for additional costs and expenses which Landlord expects to incur in connection with the handling and processing of late installment payments of the Base Rent and such other sums owed by Tenant to Landlord hereunder.  If there is a late payment by Tenant, the damages resulting to Landlord will be difficult to ascertain precisely, and the foregoing charge constitutes a reasonable and good faith estimate by the parties of the extent of such damages and does not constitute interest.  Notwithstanding the foregoing, such late charges shall not apply to any sums which may have been advanced by Landlord to or for the benefit of Tenant pursuant to this Lease.  If any check delivered to Landlord by Tenant in payment of Base Rent or Additional Rent is not honored by the financial institution upon which such check was drawn and is returned to Landlord for any reason whatsoever, Landlord may impose, as Additional Rent, a returned check service charge of $15.00 or five percent (5%) of the amount of such returned check, whichever is greater, each time a check is not honored and returned to Landlord.  Such returned check service charge shall be in addition to and not in lieu of any late payment charge.  If any two (2) checks delivered to Landlord by Tenant during the Lease Term in payment of Base Rent or Additional Rent are not honored by the financial institution upon which such checks were drawn are returned to Landlord for any reason whatsoever, Landlord may require, upon written notice to Tenant, that any and all subsequent payments of Base Rent or Additional Rent be made by either cash, money order or cashier’s check for the balance of the Lease Term.

 

3.4                                  The Security Deposit shall be held by Landlord as security for the performance by Tenant of Tenant’s covenants and obligations under this Lease. Such deposit shall not be considered an advance payment of Rent or a measure of Landlord’s damages in a default by Tenant.  No interest or other such return shall be paid on said Security Deposit.  Upon any event of default by Tenant, Landlord may (but shall not be obligated to), without prejudice to any other remedy, use the Security Deposit to the extent necessary to fund any arrearage of Rent and any other damage, injury, expense or liability caused to Landlord by such event of default.  Following such application of the Security Deposit, Tenant shall pay to Landlord on demand the amount so applied to restore the Security Deposit to its original amount.  If there is not then an event of default, any remaining balance of the Security Deposit shall be returned by Landlord to Tenant upon termination of this Lease.  If Landlord transfers its interest in the Premises during the Lease Term, Landlord may assign the Security Deposit to the transferee and thereafter shall have no further liability for the return of the Security Deposit.  The Security Deposit may be co-mingled or combined with other accounts or funds of Landlord.

 

3.5                                  All sums other than Base Rent payable by Tenant to Landlord under this Lease shall constitute “Additional Rent”.  Base Rent and Additional Rent are herein referred to collectively as “Rent”. All Rent due hereunder shall bear interest from the due date until paid in full at a rate equal to the lesser of:  (a) the prime interest rate in effect from day to day at NationsBank of Georgia, N.A., plus three (3) percentage points; or (b) the maximum legal rate allowed by law (the “Default Rate”). If more than the maximum legal rate of interest should ever be collected with regard to any sum due hereunder, said excess amount shall be credited against

 

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future payments of Rent accruing thereafter.  If no such further Rent accrues hereunder, said excess sums shall be promptly refunded by Landlord to Tenant upon demand by Tenant.

 

3.6                                  No payment by Tenant or receipt by Landlord of a lesser amount than the correct Rent shall be deemed to be other than a payment on account, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction.  Landlord may accept such check of payment without prejudice to Landlord’s right to recover the balance or to pursue any other remedy.

 

4.                                        Increases in Base Rent.

 

4.1                                  -The Base Rent payable under-Section 3.1 hereof is based upon-the Revised Consumer Price Index for the United States, All Urban-Consumers:  All items (1982 1984 = 100) (“Consumer Price Index”) published by the Bureau of Labor Statistics, United-States Department-of-Labor.  The base index (“Base Index”)-for-this Lease is hereby stipulated-to-be the Consumer Price Index for the month in which the Lease-Term commences, or if no such index is published-for said month, then the Base-Index shall-be the Consumer-Price Index-for the month which is nearest, but-prior to, the Commencement Date. — On each anniversary of the Commencement-Date during the-Lease-Term, the Base-Rent shall be adjusted so that it-shall-be equal-to the product-of (a) a fraction, the numerator-of-which is the Consumer Price Index-for the month in question,-and the denominator of which is the Base Index, multiplied by (b) the Base Rent specified-in Section 1.8 hereof prior-to-any adjustment provided; however, the Base Rent shall not be less than the amount-of-Base-Rent-due on the immediately prior anniversary of the Commencement Date (or the Commencement Date itself, -if applicable). — If the index for any anniversary in question is not published as of the effective date of adjustment,-then Tenant shall continue to pay the existing Base Rent-due from Tenant until the index necessary to perform the calculations described herein is published and Landlord is able to calculate the revised amount of Base Rent due from Tenant, or, in the-alternative, at Landlord’s-option,-Landlord-shall provide such comparable-period for adjustment-purposes, using the Consumer Price Index which is nearest, but prior to, the adjustment date in-question and the Commencement Date.  Upon the submission of such calculation-from Landlord, Tenant-shall thereafter pay the adjusted Base Rent.  Tenant shall-also-pay within thirty-(30) days after such calculation the-difference between what- Tenant has paid in Base Rent for the year in question and what Tenant would have paid, had the-adjustment in-question been made and Base Rent at the adjusted rate paid-as-of January 1 of said year.

 

4.2                                  If the Consumer Price -Index as now published-shall-be revised or cease to be compiled and published-during-the Lease-Term,-then the Bureau of Labor-Statistics shall be requested to furnish a statement converting-the Base Index to a figure that would be-comparable to another index published by the Bureau of Labor-Statistics and such other index shall be-used-in

 

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computing the adjustment in Rent provided herein.  Should the parties not be able to secure such appropriate-conversion or adjustment, they-shall-agree on some-other index serving the same purpose to adjust the Rent-as provided herein.

 

5.                                        Landlord’s Obligations .

 

5.1                                  Subject to the limitations hereinafter set forth, Landlord shall furnish Tenant while occupying the Premises and while Tenant is not in default under this Lease facilities to provide (a) water at those points of supply provided for general use of tenants of the Building, (b) heat and air conditioning in season, from 7:00 a.m. to 6:00 p.m.  Monday through Friday and from 7:00 a.m. to 1:00 p.m. on Saturdays, except for holidays, at temperatures and amounts reasonably considered by Landlord to be standard such service at night and on Saturday afternoons, Sundays and holidays to be furnished only at the written request of Tenant, who shall pay upon demand Landlord’s customary charges for such services; (c) janitorial services to the Premises on weekdays other than holidays (such janitorial service shall not include cleaning or polishing of furniture, the shampooing of carpets or rugs, or any personal service) and window washing as may, in Landlord’s judgment, be reasonably required, and (d) subject to Section 5.6 hereof, elevators for ingress and egress to the floor on which the Premises are located, in common with other tenants, provided that Landlord may limit the number of elevators to be in operation at times other than during customary business hours for the Building and on holidays.  Landlord also agrees to maintain the public and common areas (the “Common Facilities”) of the Building, such as lobbies, stairs, corridors and rest rooms, in reasonably good order and condition, except for damage caused by Tenant, or its employees, agents or invitees.  If Tenant desires services specified in this Section at any time other than times herein designated, such service shall be supplied to Tenant only at the request of Tenant delivered to Landlord before 3:00 p.m. on the date which is two (2) business days preceding such extra usage.  Tenant shall pay to Landlord as Additional Rent the cost of such service upon receipt of a bill therefore.

 

5.2                                  Landlord shall provide standard electric lighting and current for Tenant’s use of the Premises and shall make available electric lighting and current for the common areas of the Building, in the manner and to the extent deemed by Landlord to be standard.  If Tenant’s use of electric current (a) exceeds 110 volt power, or (b) exceed that required for routine lighting and operation of general office machines (such as typewriters, dictating equipment, desk model adding machines and the like) which use 110 volt electrical power, then the Tenant shall pay on demand the cost (as determined by Landlord) of any such excess.  Without Landlord’s prior consent, Tenant shall not install any data processing or computer equipment in the Premises or any other equipment which it shall require for its use other than the normal electrical current or other utility service.  Whenever heat generating machines or equipment (other than general office machines described above) are used in the Premises by Tenant which affect the temperature otherwise maintained by the air conditioning system or otherwise overload any utility, Landlord

 

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shall have the right to install supplemental air conditioning units or other supplemental equipment in the Premises, and the cost thereof (as determined by Landlord), including without limitation, the cost of installation, operation, use and maintenance, shall be paid by Tenant to Landlord on demand.  The rate charged by Landlord shall not exceed the rate prevailing for Tenant as a user as established by the applicable rate classification published from time to time by the local electric power company or other utility supplier.  The obligation of the Landlord to make available such utilities shall be subject to the rules and regulations of the supplier of such utilities and of any municipal or other governmental authority regulating the business of providing such utility service.  Tenant will be billed monthly for such additional utility service and all such charges shall be considered due upon delivery of such bill and be deemed Additional Rent due from Tenant.

 

5.3                                  Landlord shall not be liable or responsible to Tenant for loss, damages or expense Tenant sustains or incurs if either the quantity or character of any utility service is changed or is no longer available or is no longer suitable for Tenant’s requirements.  Tenant covenants and agrees that its use of electric current shall never exceed the capacity of existing feeders to the Building or the risers or wiring installations.  Any riser or risers or wiring required or necessary to meet Tenant’s excess electrical requirements upon written request of Tenant will be installed by Landlord at the sole cost and expense of Tenant (if, in Landlord’s sole judgment, the same are necessary and will not cause permanent damage or injury to the Building or the Premises or cause or create a dangerous or hazardous condition or entail excessive or unreasonable alterations, repairs or expense or interfere with or disturb other tenants.  At any time when Landlord is making such additional utility service available to the Premises, Landlord may, at its option, upon not less than thirty (30) days’ prior written notice to Tenant, discontinue the availability of such additional utility service.  If Landlord gives any such notice of discontinuance, Landlord shall make all the necessary arrangements with the public utility supplying the utilities to the Premises with respect to obtaining such additional utility service to the Premises, but Tenant will contract directly with such public utility for the supplying of such additional utility service to the Premises).

 

5.4                                  Failure to any extent to make available, or any slow-down, stoppage or interruption of, these defined services resulting from any cause (including, but not limited to, Landlord’s compliance with (a) any voluntary or similar governmental or business guideline now or hereafter published or (b) any requirements now or hereafter established by any governmental agency, board or bureau having jurisdiction over the operation and maintenance of the Building) shall not render Landlord liable for damages to person, property, or business, nor be construed as an eviction of Tenant or work an abatement of Rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof.  If any equipment or machinery furnished by Landlord break down or for any cause cease to function properly, Landlord shall use reasonable diligence to repair same promptly, but Tenant shall have no claim for abatement of Rent or damages for any reasonable interruptions in service occasioned thereby or resulting there from.

 

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5.5                                  Tenant’s obligations to pay Additional Rent pursuant to this Article 5 shall continue to the actual date of expiration or termination of this Lease.  If Landlord terminates this Lease without waiving Landlord’s right to seek damages against Tenant, Tenant’s obligation to pay any and all Additional Rent pursuant to this Article 5 shall not terminate as a result thereof.

 

5.6                                  Landlord may at any time remodel or alter the Building or the Project, or change the location of any entrance thereto, or any other portion thereof not occupied by Tenant, and the same shall not constitute a constructive, actual, total or partial eviction.  Landlord reserves the right to regulate at all times the number of elevators that will be operated in the Building.  Landlord reserves the right to stop the elevators at any time in cases of breakage, repair or replacement of machinery or any emergency or accident.

 

6.                                        Reimbursement for Operating Costs .

 

6.1                                  Definitions .  The definitions set forth in this Subsection 6.1 shall be applied whenever any of the following terms are used in this Section 6.

 

6.1.1                         Operating Costs: shall mean all costs paid by Landlord or its representatives in connection with the ownership, management, maintenance, operation, insuring, repairing, redecorating, cleaning and securing of the Building, as determined by Landlord to be necessary or appropriate, including, without limitation, all of the following costs:

 

6.1.1.1                       All wages, salaries, commissions and related expenses of all on-site and off-site agents, employees and contractors engaged in the management, operation, maintenance, repair, redecoration, renovation, cleaning, and security of the Building, plus the costs of all management, maintenance, and security offices in the Building.

 

6.1.1.2                       All supplies and materials used and labor charges incurred in the management, operation, maintenance, repair, redecoration, renovation, cleaning and security of the Building.

 

6.1.1.3                       All equipment purchased or leased for the performance of Landlord’s obligations hereunder.

 

6.1.1.4                       All management, maintenance, leaning, security, promotional and other service agreements for the Building and the equipment therein, including, without limitation, alarm service, security service, window cleaning, and elevator and escalator maintenance.

 

6.1.1.5                       All accounting, legal and engineering fees and expenses, including, without limitation, the cost of audits by certified public accountants.

 

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6.1.1.6                       All insurance premiums, including, without limitation, fire, casualty, extended coverage, public liability, rent abatement, boiler, and worker’s compensation insurance applicable to the Building, Landlord’s employees and Landlord’s personal property used in connection therewith.

 

6.1.1.7                       All redecorating and renovation (including painting, wallpapering and floor covering), maintaining and repairing of the Building and Common Areas, structural or of non-structural nature, including, without limitation, the mechanical, electrical, heating, ventilating and air conditioning equipment, landscape maintenance and the replacement of trees and shrubbery.

 

6.1.1.8                       All removing of trash, rubbish, garbage and other refuse from the Building, as well as removal of ice and snow from the sidewalks, driveways and parking lots.

 

6.1.1.9                       All amortization of capital improvements, determined in a manner consistent with generally accepted accounting principles, consistently applied, (including accounting, legal, architectural and engineering fees incurred in connection therewith) made to the Building subsequent to the Commencement Date which (i) will improve operating efficiencies or the quality of the Building; (ii) may be required by any law; or (iii) improve or enhance the health of persons in the Building or safety of the Building.

 

6.1.1.10                 All charges for electricity, gas, water, sewer, and other utilities furnished to or services or privileges made available to users of the Building.

 

6.1.1.11                 All ad valorem property taxes covering all real and personal property constituting a part of the Building, including, but not limited to, all general and special assessments of every kind.

 

6.1.1.12                 All other expenses of maintaining, operating, insuring, securing, managing, cleaning, redecorating, renovating or repairing the Building, whether or not any of the foregoing shall be designated “real property tax,” “excise tax,” “business tax” or designated in any other manner, except the Rent Tax.

 

6.1.2        Notwithstanding any of the foregoing to the contrary, Operating Costs shall not include:

 

6.1.2.1                       Costs which are directly reimbursed to Landlord by other tenants.

 

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6.1.2.2                       Payments on mortgages or ground leases owed by Landlord.

 

6.1.2.3                       Costs of leasehold improvements for which Landlord has agreed to pay.

 

6.1.2.4                       Payment of any return on equity to any owner of the Building.

 

6.1.2.5                       Costs reimbursed by proceeds of insurance.

 

6.1.2.6                       Costs of the initial construction of the Building or any depreciation thereof.

 

6.1.2.7                       Payments of claims, damages or expenses resulting from any willful misconduct of Landlord or any of its authorized representatives.

 

6.1.2.8                       Costs or roof replacement or structural repairs.

 

6.1.3                         Tenant’s Share .  Shall mean the percentage that expresses the ratio between the number of rentable square feet comprising the Premises (4,525) , and the number of rentable square feet of the Building (127,859), which, for the purposes of the Lease, shall be .035391 .

 

6.2                                  Payment of Operating Costs by Tenant .  In addition to the Base Rent, Tenant agrees to pay as Additional Rent to Landlord Tenant’s Share of estimated Operating Costs in excess of the Operating Costs for the Building for 2004 , on a per rentable square foot per annum basis and adjusted as required herein (the “Initial Operating Costs”), which Additional Rent shall be due in twelve (12) equal installments in each Lease Year.  All subsequent payments of Tenant’s Share of Operating Costs shall be due and payable without demand, deduction or set off in advance on or before the first day of each month of the Lease Term.  During any Lease Year within the Lease Term that is less than twelve (12) full months, any amount to be paid with respect to such period shall be proportionately adjusted based on that portion of the Lease Year that this Lease is in effect.

 

6.3                                  Calculation of Operating Costs .  On or before December 15 of each Lease Year, Landlord shall provide Tenant with Landlord’s estimate of Tenant’s Share of estimated Operating Costs for the following Lease Year.  Beginning on the January 1 of each Lease Year the amount of Tenant’s Share of estimated Operating Costs shall be adjusted to the amount set forth in Landlord’s notice.  As promptly as practicable after the end of each Lease Year, Landlord shall compute the actual Operating Costs for the previous Lease Year.  If Tenant’s Share of the actual Operating Costs is greater than the amount Tenant paid to Landlord as

 

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Tenant’s Share of the estimated Operating Costs for the previous Lease Year, Tenant shall, within fifteen (15) days after receipt of notice of Tenant’s Share of actual Operating Costs, pay to Landlord as Additional Rent an amount equal to the difference between Tenant’s Share of actual Operating Costs and Tenant’s Share of estimated Operating Costs.  If Tenant’s Share of the actual Operating Costs for any Lease Year is less than the amount Tenant paid to Landlord as Tenant’s Share of estimated Operating Costs for such Lease Year, such excess amount shall be applied against the installment of Additional Rent next coming due until the same has been fully applied.

 

6.4                                  Adjustments to Operating Costs .  Notwithstanding anything to the contrary contained herein, if the Building is not fully occupied during any calendar year, appropriate adjustments shall be made to determine Operating Costs as though the Building has been ninety percent (90%) occupied in such calendar year.

 

6.5                                  Audit Rights .  Within thirty (30) days of its receipt of the operating statement, Tenant at its sole cost and expense shall have the right to review in Landlord’s offices and during normal business hours Landlord’s records of Operating Costs stated in the operating statement.  If within such thirty (30) day period, Tenant does not give written notice stating in detail reasonable objections to such calculations, Tenant shall be deemed to have given approval of such calculations.  Failure to pay such Additional Rent, whether or not under protest, within said thirty (30) day period and failure to cure such default within ten (10) days thereafter shall constitute an event of default hereunder.

 

7.                                        Permitted Use .  Tenant shall use the Premises only for the Permitted Use.  Tenant will not occupy or use the Premises, or permit any portion of the Premises to be occupied or used, for any business or purpose other than the Permitted Use or for any use or purpose which is unlawful in part or in whole or deemed to be disreputable in any manner or extra hazardous on account of fire, nor shall Tenant use, store, or discharge any “Hazardous Material” as defined in Section 45 hereof, nor permit anything to be done which will in any way increase the rate of insurance on the Building or contents; and if, by act of Tenant, there is any increase in the rate of insurance on the Building or contents created by Tenant’s acts or conduct, then such acts of Tenant shall be an event of default hereunder and Tenant shall pay to Landlord the amount of such increase on demand.  Acceptance of such payment shall not constitute a waiver of any of Landlord’s other rights provided herein.  Tenant will conduct its business and control its agents, employees and invitees to not create any nuisance, nor interfere with, annoy or disturb other tenants or Landlord in the management of the Building.  Tenant will maintain the Premises in a clean, healthful and safe condition and will comply with all laws, ordinances, orders, rules and regulations (state, federal, municipal and other agencies of bodies having jurisdiction thereof) with reference to the use, condition or occupancy of the Premises as well as the provisions of all recorded documents affecting the Building.  Tenant will not, without the prior consent of Landlord, paint, install lighting or install any signs, window or door lettering or advertising media of any type on or about the Premises.  Tenant shall not place a load upon any floor of the Premises exceeding the floor load per square foot which such floor was designated to carry or

 

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which is allowed by law.  Landlord hereby reserves the right to prescribe the weight and position of all safes or other unusually heavy equipment which must be placed so as to distribute the weight.  Business machines and mechanical equipment shall be placed and maintained by Tenant, at Tenant’s sole cost and expense, in settings sufficient in Landlord’s judgment to absorb and prevent transmission of vibration, noise and annoyance.  Tenant shall not install or use in the Premises any electrical machinery or appliances which in Landlord’s sole judgment may overload the electrical wiring or equipment capacity in the Premises or the Building.

 

8.                                        Tenant’s Repairs and Alterations .

 

8.1                                  Tenant will not deface or injure the Building, and will pay the cost of repairing any damage or injury done to the Building or any part thereof by Tenant or Tenant’s agents, employees or invitees.  Tenant shall take good care of the Premises and keep them free from waste and nuisance of any kind.  Tenant shall keep the Premises, including all fixtures installed by Tenant, in good condition, and to make all necessary non-structural repairs except those caused by fire, casualty or acts of God covered by Landlord’s insurance policy covering the Building, (if any). The performance by Tenant of its obligations to maintain and make repairs shall be conducted only by contractors and subcontractors consented to by Landlord, and Tenant shall procure and maintain and shall cause such contractors and subcontractors engaged by or on behalf of Tenant to procure and maintain insurance coverage against such risks, in such amounts and with such companies as Landlord requires in connection with such maintenance and repair.  Tenant shall prohibit any contractor it engages or subcontractor or material suppliers engaged through such contractor from filing any notice or notices of commencement of public record as a part of or in connection with work on the Premises.  Tenant hereby further covenants and agrees to provide Landlord with copies of any notices Tenant receives in connection with such work.

 

8.2                                  If Tenant fails to make the repairs described above within fifteen (15) days after the occurrence of the damage or injury, Landlord may at its option make such repair, and Tenant shall, upon demand therefore, pay Landlord one hundred ten percent (110%) of the cost thereof.  At the end or other termination of this Lease, Tenant shall deliver the Premises with all improvements located thereon (except as otherwise herein provided) in good repair and condition, reasonable wear and tear excepted; and shall deliver to Landlord all keys to the Premises.

 

8.3                                  Tenant will not make or allow to be made any alterations or physical additions in or to the Premises without the prior written consent of Landlord.  All alterations, additions or improvements (whether temporary or permanent in character) made in or upon the Premises by Landlord or Tenant shall be Landlord’s property on termination or expiration of this Lease and shall remain on the Premises without compensation to Tenant, provided that Landlord, at its option, may by notice to Tenant, require Tenant to remove any such alterations, additions

 

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or improvements at Tenant’s cost and restore the Premises to the condition of the Premises at the Commencement Date, normal wear and tear excepted.  All furniture, movable trade fixtures and equipment installed by Tenant may be removed by Tenant at the termination of this Lease if Tenant elects, and shall be removed if required by Landlord, or if not removed shall, at the option of Landlord, become the property of Landlord.  All such installations, removals and restoration shall be accomplished in a good workmanlike manner so as not to damage the Premises or the structure of the Building or the plumbing, electrical or other utilities.

 

8.4                                  There shall be no allowance to Tenant for a diminution of rental value of the Premises and no liability on the part of Landlord for inconvenience, annoyance or injury to business arising from Landlord, Tenant or others making any repairs, alterations, additions, or improvements in or to any portion of the Project or the Premises, or in or to any fixtures or personal property attached thereto or located therein.

 

9.                                        Subletting and Assigning .

 

9.1                                  Tenant shall not assign, mortgage or encumber this Lease, nor sublet, suffer or permit the Premises or any part thereof to be used by others, without the prior consent of Landlord, which shall not be unreasonably withheld.   If this Lease is assigned, or if the Premises or any part hereof be sublet or occupied by anyone other than Tenant, without Landlord’s prior consent, Landlord may collect from the assignee, subtenant or occupant, and apply the net amount collected to the Rent, but no such assignment, subletting, occupancy or collection shall be a waiver of this covenant, or the acceptance of the assignee, subtenant or tenant, or a release of Tenant from the further performance of its covenants herein contained.  The consent by Landlord to an assignment or subletting shall not be construed to relieve Tenant from obtaining Landlord’s consent to any further assignment or subletting.

 

9.2                                  For the purposes of this Lease, an “assignment” prohibited by this Section 9 shall be deemed to include the following: if Tenant is a partnership, a withdrawal or change (voluntary, involuntary, by operation of law) of any one or more of the partners thereof, if such withdrawal represents twenty-five (25%) or more of the partners in the partnership as then constituted, or the dissolution of the partnership; or, if Tenant consists of more that one person, a purported assignment, transfer, mortgage of encumbrance (voluntary, involuntary, by operation of law or otherwise) from one thereof to the other or other thereof, or to any third party; or, if Tenant is a corporation, any dissolution, merger, consolidation or other reorganization of Tenant, or any change in the ownership (voluntary, involuntary, by operation of law, creation of new stock or otherwise) of fifty percent (50%) or more of its capital stock from the ownership existing on the date of execution hereof, or, the sale of fifty percent (50%) of the value of the assets of Tenant.

 

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9.3                                  Notwithstanding the foregoing, without Landlord’s consent, but upon ten (10) days’ written notice to Landlord, this Lease may be assigned, or the Premises may be sublet, to any corporation which is a parent, subsidiary or affiliate of Tenant.  For the purposes of this Section 9, a “parent” shall mean a corporation which owns not less than one hundred percent (100%) of the outstanding stock of Tenant, a “subsidiary” shall mean any corporation not less than one hundred percent (100%) of whose outstanding stock shall be owned by Tenant, and an “affiliate” shall mean any corporation not less than one hundred percent (100%) of whose outstanding stock shall be owned by Tenant’s parent.

 

9.4                                  No less than thirty’ (30) days prior to the effective date of a proposed assignment or sublease (other than one made pursuant to Subsection 9.3), Tenant shall offer to reconvey to Landlord, as of said effective date, that portion of the Premises which Tenant is seeking to assign or sublet, which offer shall contain an undertaking by Tenant to accept, as full and adequate consideration for the reconveyance, Landlord’s release of Tenant from all future Rent and other obligations under this Lease for the Premises or portion thereof so reconveyed.  Landlord, in its absolute discretion, shall accept or reject the offered reconveyance within thirty (30) days of the offer.  If Landlord accepts, the reconveyance shall be evidenced by an agreement acceptable to Landlord in form and substance.  If Landlord fails to accept or reject the offer within the thirty (30) day period, Landlord shall have rejected the offer.

 

9.5                                  If Landlord rejects or is deemed to have rejected Tenant’s offer of reconveyance and if Landlord gives its consent to any assignment of this Lease or to any sublease, or if Tenant is otherwise permitted to make any assignment or sublease pursuant to this Lease, Tenant shall in consideration therefore, pay to Landlord, as Additional Rent:

 

9.5.1                         For an assignment, an amount equal to all sums and consideration paid to Tenant by the assignee for or by reason of such assignment (including any sums paid for the sale, rental, or use of Tenant’s Property in excess of the then unamortized value of Tenant’s Property as reflected in Tenant’s federal income tax returns) less the reasonable brokerage commissions and legal fees, if any, actually paid by Tenant in connection with such assignment; and

 

9.5.2                         For a sublease, any rents, additional charge or other consideration payable under the sublease to Tenant by the subtenant (including any sums paid for the sale, rental or use of Tenant’s Property in excess of the then unamortized value of Tenant’s Property as reflected in Tenant’s federal income tax returns) that are in excess of the Rent during the term of the sublease with respect to the subleased space, less the reasonable brokerage commissions and legal fees, if any, actually paid by Tenant in connection with such subletting.

 

The sums payable under this Subsection 9.5 shall be paid to Landlord as and when payable by the assignee or subtenant to Tenant.

 

9.6                                  Tenant shall reimburse Landlord on demand for any reasonable costs that Landlord may incur in connection with said assignment or sublease, including the reasonable

 

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costs of Investigating the acceptability of the proposed assignee or subtenant, and reasonable legal costs incurred in connection with the granting of any requested consent.

 

9.7                                  No assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee), and Tenant shall not be released from performing any of its obligations hereunder.

 

10.                                  Indemnity .  Landlord shall not be liable for and Tenant will indemnify and save harmless Landlord of and from all fines, suits, demands, losses and actions (including attorneys’ fees) for any injury to person or damage to or loss of property on or about the Premises caused in whole or in part by the negligence or misconduct of, or breach of the Lease by Tenant and its employees, subtenants, invitees or by any other person entering the Premises, the Building, or the Project under express or implied invitation of Tenant, or arising out of Tenant’s use of the Premises.  Landlord shall not be liable or responsible for any loss or damage to any property or death or injury to any person occasioned by theft, fire, act of God, public enemy, criminal conduct of third parties, injunction, riot, strike, insurrection, war, court order, requisition of other governmental body or authority, by other tenants of the Building or any other matter, or for any injury or damage or inconvenience which may arise through repair or alteration of any part of the Building, or failure to make repairs, or from any cause whatever except Landlord’s willful misconduct.  Landlord shall not be liable for any loss of Tenant’s business revenue.

 

11.                                  Subordination and Mortgagee’s Right to Cure Landlord’s Defaults .  This Lease and all rights of Tenant hereunder are subject and subordinate to any deeds to secure debt, mortgages or any other instruments of security, as well as to any ground leases, that now or hereafter cover all or any part of the Building, the land situated beneath the Building or any interest of Landlord therein, and to any and all advances made on the security thereof, and to any and all increases, renewals, modifications, consolidations, replacements and extensions of any such instruments.  This provision shall be self-operative and no further instrument shall be required to effect such subordination of this Lease.  Tenant shall, however upon demand execute, acknowledge and deliver to Landlord any and all instruments and certificates that in the judgment of Landlord may be necessary or proper to confirm or evidence such subordination.  Notwithstanding the generality of the foregoing provisions of this Section, Tenant agrees that any such mortgagee shall have the right at any time to subordinate any such instruments to this Lease on such terms and subject to such conditions as such mortgagee may deem appropriate.  Tenant further covenants and agrees upon demand by Landlord’s mortgagee at any time, before or after the institution of any proceedings for the foreclosure of any such instruments, or sale of the Building pursuant to any such instruments, to attorn to such purchaser upon any such sale and to recognize such purchaser as Landlord under this Lease.  The agreement of Tenant to attorn upon demand of Landlord’s mortgagee contained in the immediately preceding sentence shall survive any such foreclosure sale.  Tenant shall upon demand at any time or times before or after any such foreclosure sale, execute, acknowledge and deliver to Landlord’s mortgagee any and all instruments and certificates that in the judgment of Landlord’s mortgagee may be necessary or proper to confirm or evidence such attornment.  Tenant hereby irrevocably appoints Landlord’s

 

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mortgagee as Tenant’s agent and attorney-in-fact for the purpose of executing, acknowledging and delivering any such instruments and certificates.

 

12.                                  Rules and Regulations .  Tenant and Tenant’s agents, employees and invitees will comply with all the rules and regulations of the Building that are attached hereto as Exhibit “D” and incorporated herein by reference.  Landlord in its sole judgment shall have the right to change such rules and regulations or to promulgate other rules and regulations in a manner deemed advisable for safety, care, or cleanliness of the Building and related facilities or premises, and for preservation of good order therein, all of which rules and regulations, changes and amendments will be forwarded to Tenant in writing and shall be carried out and observed by Tenant.  Tenant shall further be responsible for the compliance with such rules and regulations by the employees, servants, agents, visitors and invitees of Tenant.

 

13.                                  Inspection .  Landlord or its officers, agents, and representatives shall have the right to enter into and upon any and all parts of the Premises at all reasonable hours (or, in any emergency, at any hour) to (a) inspect same or clean or make repairs or alterations or additions as Landlord may deem necessary (but without any obligation to do so, except as expressly provided for herein) or (b) show the Premises to prospective tenants, purchasers or lenders; and Tenant shall not be entitled to any abatement or reduction of Rent by reason thereof, nor shall such be deemed to be an actual or constructive eviction.

 

14.                                  Condemnation .  If the Premises, or any part thereof, or if the Building or any portion of the Building, leaving the remainder of the Building unsuitable for use as an office building comparable to its use on the Commencement Date of this Lease, shall be taken or condemned in whole or in part for public purposes, or sold in lieu of condemnation, then the Lease Term shall, at the sole option of Landlord, forthwith cease and terminate.  All compensation awarded for any taking (or sale proceeds to lieu thereof) shall be the property of Landlord, and Tenant shall have no claim thereto, the same being hereby expressly waived by Tenant.

 

15.                                  Casualty .  If the Building is totally destroyed by fire or other casualty or if the Premises or Building is so damaged that rebuilding or repairs cannot be completed within one hundred eighty (180) days after the date of such damage, Landlord or Tenant may at its option terminate this Lease, in which event the Rent shall be abated during the unexpired portion of this Lease effective from the date of such damage.  If the Building or the Premises are damaged by fire, tornado or other casualty covered by Landlord’s insurance, but only to such extent that rebuilding or repairs can be completed within one hundred eighty (180) days after the date of such damage, or if the damage should be more serious but neither Landlord nor Tenant elects to terminate this Lease, Landlord shall within ninety (90) days after the date of such damage commence to rebuild or repair the Building and/or Premises and proceed with reasonable diligence to restore the Building and/or Premises to not less than substantially the same condition

 

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in which it was immediately prior to the casualty, except Landlord shall not be required to rebuild, repair or replace any part of the furniture, equipment, fixtures and other improvements which may have been placed by Tenant in the Premises.  There shall be a fair diminution of Rent during the time the Premises are unfit for occupancy.  If any mortgagee under a deed to secure debt, security agreement or mortgage requires the insurance proceeds be applied against the mortgage debt, Landlord shall have no obligation to rebuild and this Lease shall terminate upon notice to Tenant; provided, however, that Landlord shall notify Tenant, within thirty (30) days after any such mortgagee gives a notice to Landlord of such election to apply such proceeds against the mortgage debt, of the fact that such mortgagee has done so.  Except as hereinafter provided, any insurance which may be carried by Landlord or Tenant against loss or damage to the Building or to the Premises shall be for the sole benefit of the party carrying such insurance and under its sole control.

 

16.                                  Holding Over .  Should Tenant hold over in the Premises after the expiration of the Lease Term, unless otherwise agreed to in writing by Landlord, such holding over shall constitute a tenancy at will, at a daily rental equal to twice 150% the daily Rent payable for the last month of the Lease Term, and Tenant shall pay to Landlord all damages that Landlord may suffer on account of Tenant’s failure to surrender to Landlord possession of the Premises, and Tenant will indemnify and save Landlord harmless from and against all claims made by any succeeding tenant of the Premises against Landlord because of Landlord’s delay in delivering possession of the Premises to said succeeding tenant resulting from the holdover by Tenant of the Premises.  The inclusion of the preceding sentence shall not be construed as Landlord’s consent for Tenant to hold over.

 

17.                                  Taxes on Tenant’s Property .  Tenant shall be liable for all taxes levied or assessed against personal property, furniture or fixtures placed by Tenant in the Premises (herein called “Tenant’s Property”).  If any such taxes for which Tenant is liable are levied or assessed against Landlord or Landlord’s property and if Landlord elects to pay the same or if the assessed value of Landlord’s property is increased by inclusion of personal property, furniture or fixtures placed by Tenant in the Premises, and Landlord elects to pay the taxes based on such increase, Tenant shall pay to Landlord upon demand that part of such taxes for which Tenant is primarily liable hereunder.

 

18.                                  Events of Default .  The following shall be events of default by Tenant under this Lease:

 

18.1                            Tenant shall fail to pay when due any Rent or other sums payable by Tenant hereunder (or under any other lease now or hereafter executed by Tenant in connection with the Building).

 

18.2                            Tenant shall fail to comply with or observe any other provision of this Lease (or any other lease now or hereafter executed by Tenant in connection with the Building), each provision being of the essence hereof (and thereof); any such breach shall be deemed and

 

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construed to be of the very substance of this Lease.  Tenant shall not be in default of this Lease with respect to any non-monetary obligation until Tenant has received any notice from Landlord required under this Lease that a breach of such non-monetary obligation has occurred and Tenant has failed to remedy said breach within the period of time provided in this Lease following receipt of such notice.  Should the non-monetary breach reasonably require more than the specific cure period provided in this Lease, if any, to remedy, then Tenant shall not be in breach provided it has taken steps within such cure period to remedy the breach and continues diligently to do so.

 

18.3                            Tenant or any guarantor of Tenant’s obligations hereunder shall make an assignment for the benefit of creditors.

 

18.4                            Any voluntary or involuntary petition shall be filed by or against Tenant or any guarantor of Tenant’s obligations hereunder under any section or chapter of the Federal Bankruptcy Code, as amended from time to time, or under any similar law or statute of the United States or any State thereof; or Tenant or any guarantor of Tenant’s obligations hereunder shall be adjudged bankrupt or insolvent in proceedings filed there under.

 

18.5                            A receiver or trustee shall be appointed for all or substantially all of the assets of Tenant or any guarantor of Tenant’s obligations hereunder.

 

18.6                            Tenant shall desert or vacate the Premises.

 

18.7                            Any writ of execution, attachment, or garnishment shall be levied against any interest of Tenant in this Lease, the Premises, or any property located in the Premises.

 

19.                                  Remedies .  If Tenant defaults under this Lease, then without any notice or demand to Tenant whatsoever, Landlord shall have the right (but not any duty) to exercise, on a cumulative basis, any or all of the following remedies:

 

19.1                            Landlord may continue this Lease in full force and effect, and proceed to collect all Rent when due.

 

19.2                            Landlord may terminate this Lease by written notice to Tenant.  The termination shall be effective as of the date specified by Landlord in its notice of termination and Tenant waives any and all rights it may have to receive notice to vacate the Premises, the notice to vacate under LSA-C.C.P. art. 4701.  Landlord may thereafter lease the Premises for such price and on such terms as may be immediately obtainable and hold Tenant liable not only for the Rent due and other obligations incurred to the date of termination but also for the excess, if any, of the net amount that would have been realized by Landlord under this Lease after the termination over the net amount realized from the new tenant or tenants after deduction of all costs incurred by Landlord in reletting the Premises and in collecting the rent in connection therewith.

 

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19.3                            Landlord may accelerate and declare immediately due and payable all Rent for the entire unexpired term of this Lease.

 

19.4                            Landlord may declare immediately due and payable the Rent for any part of the unexpired term of this Leased (including any additional renewal periods for which Tenant shall have become obligated) and thereafter one or more times Landlord may declare immediately due and payable such Rent for any additional part or parts of the unexpired term of this Lease.  Landlord may proceed to effect collection of any such accelerated Rent together with any other Rent and other obligations that may be or become due by the Tenant hereunder.

 

19.5                            Landlord may cure any default at Tenant’s cost.  If Landlord at any time, by reason of Tenant’s default, pays any sum to cure any default, the sum so paid by Landlord shall be immediately due from Tenant to Landlord on demand, and shall bear interest at the Default Rate from the date paid by Landlord until Landlord shall have been reimbursed by Tenant.  Said sum, together with interest thereon, shall be Additional Rent.

 

19.6                            Landlord may apply all or part of the Security Deposit, as provided in Section 3.4.

 

19.7                            Landlord may exercise any or all other rights or remedies available at law or equity, including, without limitation, the right to obtain restraining orders, injunctions and decrees of specific performance.

 

19.8                            Landlord may obtain an injunction by any court of competent jurisdiction restraining any threatened breach or any continuing breach of any of Tenant’s covenants hereunder.  Any right granted in this Section 19 to Landlord in the event of a default by Tenant hereunder shall apply to any extension or renewal of this Lease.  No act or thing done by Landlord or Landlord’s employees or agents during the Lease Term shall be deemed an acceptance of a surrender of the Premises.  No waiver by Landlord of any default of Tenant hereunder shall be implied from any inaction by Landlord on account of such default if such default persists or is repeated, and no express waiver shall affect any d