Exhibit 10.31
MERISANT COMPANY
As Sublandlord
and
THE DIGITAL HOME/DIGITAL OFFICE, LLC
As Subtenant
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SUBLEASE
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Effective as of July 1, 2005
TABLE OF CONTENTS
1. Term.................................................................1
2. Rent.................................................................1
3. Use of the Sublease Premises.........................................2
4. Incorporation of Xxxxxxxxx Terms.....................................2
5. Sublease Subject to Xxxxxxxxx........................................3
6. Compliance with Laws.................................................5
7. Alterations..........................................................5
8. Signage..............................................................5
9. Non-Liability and Indemnification....................................5
10. Access...............................................................6
11. Damage or Destruction................................................6
12. Condemnation.........................................................7
13. At End of Term.......................................................7
14. Rules and Regulations................................................8
15. Estoppel Certificates................................................9
16. No Personal Liability................................................9
17. No Recording.........................................................9
18. Assignment or Subletting.............................................9
19. Brokerage............................................................9
20. Assignment of the Xxxxxxxxx.........................................10
21. Notices and Cure Periods; Conditions of Limitation and Remedies.....10
22. Condition of the Sublease Premises..................................11
23. Miscellaneous.......................................................11
24. Valid Authority.....................................................11
25. Sublease Provisions Control.........................................12
EXHIBIT A - Xxxxxxxxx
SUBLEASE
AGREEMENT OF SUBLEASE ("SUBLEASE") dated as of the ____ day of
August, 2005, by and between Merisant Company, a Delaware corporation having an
office at 00 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000
("SUBLANDLORD"), and The Digital Home/Digital Office, LLC, a
Missouri limited
liability company having an office at Xxx Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000 ("SUBTENANT").
W I T N E S S E T H:
WHEREAS, by lease dated as of December 22, 2000, between Xxxxx
& Company, a division of Xxxxx Bank N.A., as Trustee of the Multi-Employer
Property Trust, a trust organized under 12 C.F.R. Section 9.18 ("OVERLANDLORD"),
as landlord, and Sublandlord, as tenant a true and correct copy of which is
annexed hereto as EXHIBIT A (the "XXXXXXXXX"), Sublandlord leased from
Overlandlord certain premises in the building (the "BUILDING") located at Xxx
Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000 (and more fully described in
the Xxxxxxxxx) for a term to expire on March 31, 2006 (subject to earlier
termination in accordance with the terms thereof);
WHEREAS, Subtenant desires to sublet from Sublandlord all of
Sublandlord's leased premises on the fifth floor of the Building, as more
particularly shown on the floor plan annexed to the Xxxxxxxxx (the "SUBLEASE
PREMISES"), upon the terms and subject to the provisions and conditions
hereinafter set forth; and
WHEREAS, Subtenant is controlled by Xx. Xxxxxx X. Xxxxxx, the
Chairman and a director of Sublandlord and constitutes an "Affiliated Entity"
under the Xxxxxxxxx.
NOW, THEREFORE, the parties hereto, in consideration of the
mutual covenants, conditions and agreements hereinafter contained, do hereby
agree as follows:
1. TERM. Sublandlord hereby sublets the Sublease Premises to
Subtenant, and Subtenant hereby hires the Sublease Premises from Sublandlord,
for a term (the "TERM") which shall commence on July 1, 2005 (the "COMMENCEMENT
DATE"), and which shall end on March 31, 2006 (the "EXPIRATION DATE"), unless
sooner terminated in accordance with the provisions of this Sublease. Subtentant
shall be permitted to terminate this Sublease with or without cause upon sixty
(60) days prior written notice delivered on or after November 1, 2005; provided
that Subtenant shall continue to perform its obligations under this Agreement.
2. RENT.
A. Subtenant covenants and agrees that, during and
throughout the entire Term, Subtenant shall pay to Sublandlord Rent ("RENT") in
the amount of $8,765.00 per month, which amount Subtenant covenants and agrees
to pay to Sublandlord, in lawful money of the United States, in equal monthly
installments in advance, on the fifth (5th) business day prior to the first day
of each calendar month during the Term, at the office of Sublandlord or such
other place as Sublandlord may designate, without any deduction, offset,
abatement, defense
and/or counterclaim whatsoever, except that Subtenant shall pay the first full
monthly installment of Rent simultaneously with the execution and delivery of
this Sublease; provided that the Subtenant shall pay the Rent for the month of
July 2005 promptly upon execution of this Sublease. The monthly installment of
Rent payable on account of any partial calendar month during the Term, if any,
shall be prorated, and if Subtenant's obligation to pay Rent shall commence on a
date which shall be other than the first day of a calendar month, the same shall
be prorated and paid together with the first full monthly installment of Rent.
B. Subject to Xxxxxxxxxxxx 0X xxxxx, all payments of
Rent shall be made by good and sufficient check (subject to collection)
currently dated, drawn on a bank which is a member of the New York Clearing
House or any successor thereto, issued directly from Subtenant, without
endorsements, to the order of Merisant Company.
C. Notwithstanding anything to the contrary contained
in Subparagraph 2B above, provided that Sublandlord shall give Subtenant not
less than thirty (30) days notice thereof (which notice shall identify a
domestic bank and contain appropriate wire instructions), Subtenant shall pay
all future monthly installments of Rent at the office of such domestic bank, by
wire transfer of immediately available federal funds, to the account of
Sublandlord. On not less than thirty (30) days notice, Sublandlord may
thereafter revise or revoke such direction to pay Rent by wire transfer. If
Sublandlord shall direct Subtenant to pay, or if Subtenant shall have otherwise
elected to pay, Rent by wire transfer, then Subtenant shall not be in default of
Subtenant's obligation to pay Rent, nor shall any interest be imposed, if and
for so long as Subtenant shall timely comply with Sublandlord's wire
instructions in connection with such payments. Accordingly, if Subtenant shall
have timely complied with Sublandlord's instructions pertaining to a wire
transfer, but the funds shall thereafter have been misdirected or not accounted
for properly by the recipient bank designated by Sublandlord, then the same
shall not relieve Subtenant's obligation to make the payment so wired, but shall
toll the due date for such payment until the wired funds shall have been
located. However, for all other purposes under this Sublease: (i) Sublandlord
shall not be deemed to have accepted such payment until thirty (30) days after
the date on which such funds shall have actually been deposited in Sublandlord's
account at said bank, and (ii) Sublandlord shall be deemed to have accepted such
payment if (and only if) within said thirty (30) day period, Sublandlord shall
not have refunded (or attempted to refund) such payment to Subtenant. Nothing
contained in the immediately preceding sentence shall be construed to place
Subtenant in default of Subtenant's obligation to pay rent if and for so long as
Subtenant shall timely pay the rent required pursuant to this Lease in the
manner designated by Sublandlord.
3. USE OF THE SUBLEASE PREMISES. Subtenant shall use and
occupy the Sublease Premises for general and executive offices in accordance
with the terms and conditions of the Xxxxxxxxx (the "PERMITTED USE"), and for no
other purpose, and further covenants not to do any act which will result in a
violation of the Xxxxxxxxx.
4. INCORPORATION OF XXXXXXXXX TERMS.
A. All capitalized and other terms not otherwise
defined herein shall have the meanings ascribed to them in the Xxxxxxxxx, unless
the context clearly requires otherwise.
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B. Except as herein otherwise expressly provided, all
of the terms, provisions, covenants and conditions contained in the Xxxxxxxxx
are hereby made a part hereof. The rights and obligations contained in the
Xxxxxxxxx are, during the term of this subletting, hereby imposed upon the
respective parties hereto, with Sublandlord being substituted for "Landlord",
and Subtenant being substituted for "Tenant", with respect to the Xxxxxxxxx;
provided, however, that Sublandlord shall not be liable to Subtenant for any
failure in performance resulting from the failure in performance by Overlandlord
under the Xxxxxxxxx of the corresponding covenant of the Xxxxxxxxx, and
Sublandlord's obligations hereunder are accordingly conditional where such
obligations require such parallel performance by Overlandlord. It is expressly
agreed that Sublandlord shall not be obligated to perform any obligation that is
the obligation of Overlandlord under the Xxxxxxxxx. Sublandlord shall have no
liability to Subtenant by reason of the default of Overlandlord under the
Xxxxxxxxx. Subtenant recognizes that Sublandlord is not in a position and shall
not be required to render any of the services or utilities, to make repairs,
replacements, restorations, alterations or improvements or to perform any of the
obligations required of Overlandlord by the terms of the Xxxxxxxxx. Sublandlord
agrees, however, to use reasonable efforts to enforce Sublandlord's rights
against Overlandlord under the Xxxxxxxxx for the benefit of Subtenant upon
Subtenant's written request therefore (and to forward to Overlandlord any
notices or requests for consent as Subtenant may reasonably request). Subtenant
shall promptly reimburse Sublandlord for any and all costs which Sublandlord
shall incur in expending such efforts, and Subtenant does hereby indemnify and
agree to hold Sublandlord harmless from and against any and all claims,
liabilities, damages, costs and expenses (including, without limitation,
reasonable attorney's fees and disbursements) incurred by Sublandlord in
expending such efforts. Nothing contained in this Subparagraph 4B shall require
Sublandlord to institute any suit or action to enforce any such rights.
Subtenant acknowledges that the failure of Overlandlord to provide any services
or comply with any obligations under the Xxxxxxxxx shall not entitle Subtenant
to any abatement or reduction in Rent payable hereunder.
C. Wherever the Xxxxxxxxx refers to the "PREMISES",
such reference for the purposes hereof shall be deemed to refer to the Sublease
Premises.
D. Wherever the Xxxxxxxxx refers to the "LEASE", such
references for the purposes hereof shall be deemed to refer to this Sublease.
E. Wherever the Xxxxxxxxx refers to "RENT", such
references for the purposes hereof shall be deemed to refer to Rent.
F. Wherever the Xxxxxxxxx refers to a notice, demand,
approved, consent, request or any other communication between the parties
thereto, such references for the purposes hereof shall be deemed to refer to a
notice described in Subparagraph 22A of this Sublease.
5. SUBLEASE SUBJECT TO XXXXXXXXX.
A. This Sublease is expressly made subject and
subordinate to all of the terms and conditions of the Xxxxxxxxx and to all items
and matters which the Xxxxxxxxx are subject and subordinate (including without
limitation any mortgages and/or ground leases
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affecting the property on which the Sublease Premises is located), except as
specifically provided to the contrary in this Sublease, to the extent applicable
to the Sublease Premises. Subtenant hereby assumes and covenants that,
throughout the Term, Subtenant shall observe and perform, all of the provisions
of the Xxxxxxxxx, to the extent applicable to the Sublease Premises, which are
to be observed and performed by the tenant or subtenant (as the case may be)
thereunder. Subtenant covenants that Subtenant shall not do any act, matter or
thing which will be, result in, or constitute a violation or breach of or a
default under the Xxxxxxxxx; it being expressly agreed to by Subtenant that any
such violation, breach or default shall constitute a material breach by
Subtenant of a substantial obligation under this Sublease. Subtenant hereby
agrees that Subtenant shall indemnify and hold Sublandlord harmless from and
against all claims, liabilities, penalties and expenses, including, without
limitation, reasonable attorneys' fees and disbursements, arising from or in
connection with any default by Subtenant in Subtenant's performance of those
terms, covenants and conditions of the Xxxxxxxxx which are or shall be
applicable to Subtenant, as above provided, and all amounts payable by Subtenant
to Sublandlord on account of such indemnity shall be deemed to be Rent hereunder
and shall be payable upon demand. In any case where the consent or approval of
Overlandlord shall be required pursuant to the Xxxxxxxxx, Sublandlord's consent
shall also be required hereunder.
B. Subtenant covenants and agrees that if, by reason
of a default on the part of Sublandlord under the Xxxxxxxxx, Sublandlord's
estate in the Sublease Premises is terminated, then Subtenant will, at the
option of Overlandlord, which shall be exercised in the sole and absolute
discretion of Overlandlord, attorn to Overlandlord, on the terms and conditions
set forth in this Sublease, and will recognize Overlandlord as Subtenant's
sublandlord under this Sublease, provided that Overlandlord accepts such
attornment, having no obligation to do so, in which event Overlandlord shall
assume all prospective obligations of Sublandlord under this Sublease, provided
that under no circumstances shall Overlandlord be liable for any brokerage
commission due in connection with this Sublease or any renewal or extension
thereof, and Overlandlord shall not be (i) liable in any way to Subtenant for
any act or omission, neglect or default on the part of Sublandlord under this
Sublease, (ii) responsible for any monies owing by, or on deposit with,
Sublandlord for the credit of Subtenant, whether in the nature of security or
otherwise, unless and to the extent such monies are delivered to Overlandlord,
(iii) subject to any offset, not expressly provided for in this Sublease, which
theretofore accrued to Subtenant against Sublandlord, or (iv) bound by any
previous modification of this Sublease or by any previous prepayment of rent for
more than one month.
C. Subtenant agrees to be bound, for all purposes of
this Sublease, by any modifications or amendments to the Xxxxxxxxx. Sublandlord
agrees not to amend or modify the Xxxxxxxxx in any way that would discriminate
against Subtenant, or which would increase Subtenant's monetary obligations
hereunder, shorten the term hereof or decrease Subtenant's rights with respect
to the Permitted Use of the Sublease Premises, or which would otherwise
materially adversely affect Subtenant's rights or obligations hereunder or
permit the same to be cancelled or terminated, without Subtenant's prior written
consent, provided, however, that Sublandlord shall have the right to terminate
this Sublease, and this Sublease shall be deemed terminated, in the event that
the Xxxxxxxxx is terminated in accordance with the provisions of the Xxxxxxxxx.
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6. COMPLIANCE WITH LAWS. Subtenant shall pay all costs,
expenses, fines, penalties and damages which may be imposed upon Sublandlord,
Overlandlord, any mortgagee of the Land and/or the Building and/or any lessor or
lessee under any ground or underlying lease by reason of or arising out of
Subtenant's failure fully and promptly to comply with the provisions of Section
2.7 of the Xxxxxxxxx, as such provisions are applicable to the Sublease
Premises.
7. ALTERATIONS. Modifying (to the extent of any
inconsistency between such provisions and this Paragraph 7) the provisions of
Section 4.4 of the Xxxxxxxxx, as such provisions are applicable to the Sublease
Premises:
A. Any and all Tenant Alterations proposed to be made
by Subtenant in the Sublease Premises shall be subject to: (i) Sublandlord's
prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed, provided that (x) such Tenant Alterations does not alter
the structure of the Building, and (y) such Tenant Alteration does not affect or
involve any portion of the Building or the Building systems outside of the
Sublease Premises; and (ii) if and to the extent Overlandlord's consent would be
required under the Xxxxxxxxx if Sublandlord, as tenant under the Xxxxxxxxx, were
making such Tenant Alteration, Overlandlord's prior written consent.
B. In any instance where Overlandlord's consent to a
Tenant Alteration proposed to be made by Subtenant shall be required, and
Overlandlord shall withhold such consent, then Sublandlord's consent to such
Tenant Alteration shall be deemed withheld, and Sublandlord shall not be deemed
unreasonable in withholding such consent.
8. SIGNAGE. The installation of any signs or other form of
identification proposed to be installed by Subtenant in the elevator vestibule
of the Sublease Premises shall be subject to: (i) Sublandlord's prior written
consent, which consent shall not be unreasonably withheld, conditioned or
delayed; and (ii) Overlandlord's prior written consent to the extent such
consent would be required if Sublandlord, as tenant under the Xxxxxxxxx, were
proposing the installation of such signs or other form of identification. In any
instance where Overlandlord shall withhold such consent, then Sublandlord's
consent to the installation of any such signs or other form of identification
shall be deemed withheld, and Sublandlord shall not be deemed unreasonable in
withholding such consent.
9. NON-LIABILITY AND INDEMNIFICATION. Modifying (to the extent
of any inconsistency between such provisions and this Paragraph 9) the
provisions of Section 14.12.2 of the Xxxxxxxxx, as such provisions are
applicable to the Sublease Premises:
A. Notwithstanding anything to the contrary contained
in Section 14.12 of the Xxxxxxxxx, Subtenant agrees to defend, indemnify and
hold harmless Sublandlord and Overlandlord, and the respective agents, partners,
shareholders, directors, officers and employees of Sublandlord and Overlandlord,
from and against all damage, loss, liability, cost and expense (including,
without limitation, engineers', architects' and attorneys' fees and
disbursements) resulting from any of the risks referred to in Section 14.12 of
the Xxxxxxxxx.
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B. Neither Sublandlord nor Sublandlord's agents shall
be liable for: (i) any damage to property of Subtenant or of others entrusted to
employees of Sublandlord or to Sublandlord's agents, nor for the loss or damage
to any property of Subtenant or of any of Subtenant's agents, employees or
contractors by theft or otherwise; (ii) any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain, snow or leaks from any part of the Building or from
the pipes, appliances or plumbing works or from the roof, street or sub-surface
or from any other place or by dampness or by any other cause of whatsoever
nature, unless such injury or damage is caused by the negligent act of
Sublandlord and is not otherwise subject to the provisions of the Xxxxxxxxx;
(iii) any such damage caused by other tenants or persons in the Building or
caused by operations in construction of any private, public or quasi-public
work; or (iv) any latent defect in the Sublease Premises or in the Building.
C. Subtenant agrees, irrespective of whether
Subtenant shall have been negligent in connection therewith, to indemnify,
protect, defend and save harmless, Sublandlord and Sublandlord's partners,
officers, directors, contractors, agents and employees (individually and
collectively, the "INDEMNIFIED PARTY") from and against any and all liability
(statutory or otherwise), claims, suits, demands, damages, judgments, costs,
fines, penalties, interest and expenses (including reasonable counsel and other
professional fees and disbursements incurred in any action or proceeding,
whether between Subtenant and the Indemnified Party, or between the Indemnified
Party and any third party or otherwise), to which any such Indemnified Party may
be subject or suffer arising from, or in connection with: (i) any liability or
claim for any injury to, or death of, any person or persons, or damage to
property (including any loss of use thereof), occurring in or about the Sublease
Premises, or (ii) the use and occupancy of the Sublease Premises, or from any
work, installation or thing whatsoever done or omitted (other than by
Sublandlord or by Sublandlord's agents or employees) in or about the Sublease
Premises during the Term and during the period of time, if any, prior to the
Commencement Date that Subtenant may have been given access to the Sublease
Premises, or (iii) any default by Subtenant in the performance of Subtenant's
obligations under this Sublease, or (iv) any act, omission, carelessness,
negligence or misconduct of Subtenant or of any of Subtenant's agents, employees
or contractors.
10. ACCESS. Supplementing the provisions of Section 4.3 and
Section 4.8 of the Xxxxxxxxx, as such provisions are applicable to the Sublease
Premises, Subtenant hereby (i) acknowledges the rights granted to Overlandlord
and other parties pursuant to Section 4.3 and Section 4.8 of the Xxxxxxxxx, (ii)
agrees that neither Sublandlord nor Overlandlord shall have any liability to
Subtenant in connection with the exercise of such rights in accordance with said
Section 4.3 and Section 4.8, and (iii) agrees to cooperate with Overlandlord to
the extent that Sublandlord, as tenant under the Xxxxxxxxx, is required to
cooperate with Overlandlord pursuant to the provisions of said Section 4.3 and
Section 4.8.
11. DAMAGE OR DESTRUCTION. Modifying (to the extent of any
inconsistency between such provisions and this Paragraph 11) and supplementing
those provisions of Section 4.9 of the Xxxxxxxxx that have been incorporated
into this Sublease, as such provisions are applicable to the Sublease Premises:
A. If, as a result of all or a portion of the
Sublease Premises being damaged or rendered untenantable by fire or other
casualty, Sublandlord, as tenant under the
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Xxxxxxxxx, shall be entitled to a rent abatement with respect to such damaged
portion of the Sublease Premises pursuant to Section 4.9 of the Xxxxxxxxx, the
Rent under this Sublease shall also xxxxx, it being understood and agreed that
Subtenant shall not be entitled to any abatement under this Sublease if the
abatement granted to Sublandlord under the Xxxxxxxxx is on account of any
portion of the Premises that is not part of the Sublease Premises.
B. The provisions of this Paragraph 11 shall be
considered an express agreement governing any case of damage to or destruction
of the Building or any part thereof by fire or other casualty, and any law now
or hereafter in force that is inconsistent with the provisions of this Paragraph
12 shall have no application in such case.
12. CONDEMNATION. Modifying (to the extent of any
inconsistency between such provisions and this Paragraph 12) and supplementing
those provisions of Section 4.10 of the Xxxxxxxxx that have been incorporated
into this Sublease, as such provisions are applicable to the Sublease Premises:
A. In the event that all of the Sublease Premises
shall be acquired or condemned by eminent domain, this Sublease shall terminate
as of the earliest of: (i) the date of the vesting of title in the condemning
authority; (ii) the date that Subtenant is dispossessed by the condemning
authority; and (iii) the date that the Xxxxxxxxx shall be terminated pursuant to
Section 4.10 thereof, as if said date were the date of termination of the
Xxxxxxxxx.
B. If only a portion of the Sublease Premises shall
be so acquired or condemned, then, unless this Sublease shall be terminated by
virtue of the Xxxxxxxxx having been terminated pursuant to the terms of Section
4.10 thereof, this Sublease shall continue in full force and effect. In such
case, if Sublandlord, as tenant under the Xxxxxxxxx, shall be entitled to a rent
abatement with respect to such taken portion of the Sublease Premises pursuant
to Section 4.10 of the Xxxxxxxxx, the Rent under this Sublease shall also xxxxx,
it being understood and agreed that Subtenant shall not be entitled to any
abatement under this Sublease if the abatement granted to Sublandlord under the
Xxxxxxxxx is on account of any portion of the Premises that is not part of the
Sublease Premises.
C. In the event of any such acquisition or
condemnation of all or part of the Sublease Premises, (i) Subtenant shall not
receive any portion of the award for any such acquisition or condemnation, and
(ii) Subtenant shall have no claim against Sublandlord or Overlandlord for the
value of any unexpired portion of the term and agrees not to join in any claim
made by Overlandlord or Sublandlord and to execute all further documents that
may be required in order to facilitate the collection of the award by
Overlandlord. Notwithstanding the foregoing, provided that, in the exercise of
Sublandlord's reasonable business judgment, neither Overlandlord nor Sublandlord
will be adversely affected, Subtenant shall have the right to make a separate
claim for Subtenant's moving expenses, business dislocation expenses,
furnishings, fixtures and other personal property.
13. AT END OF TERM. Modifying (to the extent of any
inconsistency between such provisions and this Paragraph 13) the provisions of
Section 4.6 of the Xxxxxxxxx, as such provisions are applicable to the Sublease
Premises:
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A. Upon the Expiration Date or sooner termination of
this Sublease, Subtenant shall vacate and surrender the Sublease Premises in
broom-clean condition and shall forthwith repair any damage to the Sublease
Premises caused by any permitted or required removal from the Sublease Premises
of any of Subtenant's furniture, moveable trade fixtures, improvements or any
other property so removed from the Sublease Premises.
B. The parties recognize and agree that the damage to
Sublandlord resulting from any failure by Subtenant to timely surrender
possession of the Sublease Premises as aforesaid will be substantial and will
exceed the amount of the monthly installments of the Rent payable hereunder.
Subtenant therefore agrees that if possession of the Sublease Premises is not
surrendered to Sublandlord on the Expiration Date or sooner termination of this
Sublease, in addition to any other right or remedy Sublandlord may have
hereunder or at law or in equity, Subtenant shall pay to Sublandlord for each
month and for each portion of any month during which Subtenant holds over in the
Sublease Premises after the Expiration Date or sooner termination of this
Sublease, a sum equal to two times the aggregate of the portion of the Rent
which were payable under this Sublease with respect to the last month of the
Term. In addition to making all required payments under this Subparagraph 14B,
Subtenant shall, in the event of Subtenant's failure to surrender the Sublease
Premises in accordance with Section 4.6 of the Xxxxxxxxx, as modified by this
Paragraph 14 and in the manner aforesaid, also indemnify and hold Sublandlord
harmless from and against any and all cost, expense, damage, claim, loss or
liability resulting from any delay or failure by Subtenant in so surrendering
the Sublease Premises, including any consequential damages suffered by
Sublandlord and any claims made by any succeeding occupant founded on such delay
or failure, and any and all reasonable attorneys' fees, disbursements and court
costs incurred by Sublandlord in connection with any of the foregoing. Nothing
herein contained shall be deemed to permit Subtenant to retain possession of the
Sublease Premises after the Expiration Date or sooner termination of this
Sublease, and no acceptance by Sublandlord of payments from Subtenant after the
Expiration Date or sooner termination of this Sublease shall be deemed to be
other than on account of the amount to be paid by Subtenant in accordance with
the provisions of this Paragraph 14, which provisions shall survive the
Expiration Date or sooner termination of this Sublease.
C. If the Subtenant remains in possession of the
Sublease Premises on March 1, 2006 and has paid all Rent that is then due and
payable to Sublandlord under this Sublease, Sublandlord shall transfer and
convey to Subtenant all right, title and interest in any furniture and office
equipment on such Sublease Premises that is owned by Sublandlord, and
Sublandlord shall execute and deliver such bills of sale or other instruments or
documents reasonably necessary to evidence such conveyance of title to such
furniture and office equipment. Subtenant shall indemnify and hold Sublandlord
against any transfer, sale or other taxes that may arise from such sale of
furniture and office equipment. Subtenant shall deliver to Sublandlord all books
and records belonging or related to Sublandlord or its affiliates, including,
but not limited to, any information stored in an electronic format then residing
on any office equipment.
14. RULES AND REGULATIONS. Subtenant shall, and Subtenant
shall cause all of Subtenant's agents, employees, licensees and invitees to,
fully and promptly comply with all requirements of the currently existing rules
and regulations of the Building and related facilities, which are a part of the
Xxxxxxxxx. Subtenant acknowledges that Overlandlord shall at all times
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have the right to change such rules and regulations and/or Building services or
to promulgate other rules and regulations and/or Building services in such
manner as may be reasonable 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 and/or Building services, changes and amendments
will be forwarded to Subtenant in writing and shall be carried out and observed
by Subtenant. Subtenant shall further be responsible for the compliance with
such rules and regulations and/or Building services by the employees, servants,
agents, visitors, licensees and invitees of Subtenant. In the event of any
conflict between the provisions of this Sublease and the provisions of such
rules and regulations, then the provisions of such rules and regulations shall
control.
15. ESTOPPEL CERTIFICATES. At any time and from time to time
before or during the term, Subtenant shall, within ten (10) days after request
by Sublandlord, execute, acknowledge and deliver to Sublandlord a statement in
writing addressed to Sublandlord and/or to such other party(ies) as Sublandlord
may designate: (i) certifying that this Sublease is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), (ii) stating the dates to
which the Rent and other charges have been paid, (iii) stating whether or not,
to the best knowledge of the signer of such certificate, there exists any
default by either party in the performance of any covenant, agreement, term,
provision or condition contained in this Sublease, and, if so, specifying each
such default of which the signer may have knowledge, and (iv) setting forth such
other information as Sublandlord may request concerning this Sublease, it being
intended that any such statement delivered pursuant to this Paragraph 16 may be
relied upon by Sublandlord or by an assignee of Sublandlord's interest.
16. NO PERSONAL LIABILITY. The liability of Sublandlord for
any default by Sublandlord under the terms of this Sublease shall be limited to
the interest of Sublandlord in the Sublease Premises, including Sublandlord's
interest in any rental income, condemnation proceeds or insurance awards then
being held by Sublandlord at the time of enforcement of any judgment against
Sublandlord. In no event shall Subtenant (or any person or entity claiming by,
through or under Subtenant) make any claim against the direct or indirect
shareholders, officers, directors, individuals, partners, members or joint
venturers of Sublandlord for any deficiency, nor shall any direct or indirect
shareholders, officers, directors, individuals, partners, members or joint
venturers of Sublandlord, Overlandlord or the lessor under any ground or
underlying lease have or be subject to levy, attachment or other enforcement of
a remedy sought by Subtenant or anyone claiming by, through or under Subtenant
for any breach or claim hereunder.
17. NO RECORDING. Neither party shall have the right to record
this Sublease, and the same shall not be recorded.
18. ASSIGNMENT OR SUBLETTING.
A. Subtenant shall not, by operation of law or
otherwise, assign, sell, mortgage, pledge or in any manner transfer this
Sublease or any interest therein, or sublet the Sublease Premises or any part or
parts thereof, or grant any concession or license or otherwise permit occupancy
of all or any part of the Sublease Premises by any person, without first
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obtaining the consent of Overlandlord, subject to the requirements of the
Xxxxxxxxx, as well as the consent of Sublandlord, on the same terms and
conditions governing Overlandlord's consent.
B. In any instance where Overlandlord's consent to a
proposed transaction described in Subparagraph 19A above shall be required, and
Overlandlord shall withhold such consent, then Sublandlord's consent to such
proposed transaction shall be deemed withheld, and Sublandlord shall not be
deemed unreasonable in withholding such consent.
19. BROKERAGE. Subtenant represents and warrants to
Sublandlord that no broker was instrumental in consummating this Sublease, and
that no conversations or prior negotiations were had with any broker concerning
the subletting of the Sublease Premises. Subtenant shall indemnify and hold
Sublandlord harmless from and against any claims for brokerage commissions or
similar fees claimed by any person or entity.
20. ASSIGNMENT OF THE XXXXXXXXX. The term "Sublandlord" as
used in this Sublease means only the tenant under the Xxxxxxxxx, at the time in
question, so that if Sublandlord's interest in the Xxxxxxxxx is assigned, the
assignor Sublandlord shall be thereupon released and discharged from all
covenants, conditions and agreements of Sublandlord hereunder accruing with
respect to the Xxxxxxxxx from and after the date of such assignment, but such
covenants, conditions and agreements shall be binding on the assignee until
thereafter assigned.
21. NOTICES AND CURE PERIODS; CONDITIONS OF LIMITATION AND
REMEDIES.
A. All notices hereunder to Sublandlord or Subtenant
shall be given in writing and delivered by hand, or by a reputable national
overnight courier, to the addresses set forth below:
If to Sublandlord:
Merisant Company
00 X. Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to Subtenant:
The Digital Office/Digital Home LLC
Xxx Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
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B. By notice given in the aforesaid manner, either
party hereto may notify the other as to any change as to where and to whom such
party's notices are thereafter to be addressed.
C. The effective date of any notice shall be the date
of receipt of such notice (or the date that such receipt is refused, if
applicable).
22. CONDITION OF THE SUBLEASE PREMISES. It is understood and
agreed that all understandings and agreements heretofore had between the parties
are merged in this Sublease, which alone fully and completely expresses their
agreements, and that the same are entered into after full investigation, neither
party relying upon any statement or representation made by the other and not
embodied in this Sublease. Subtenant agrees to accept possession of the Sublease
Premises in "as is" and "where is" condition on the Commencement Date and
Sublandlord is not required to perform work of any kind, nature or description
to prepare the Sublease Premises for Subtenant's occupancy.
23. MISCELLANEOUS. This Sublease is made in the State of
Missouri and shall be governed by and construed under the laws thereof. This
Sublease supersedes any and all other or prior understandings, agreements,
covenants, promises, representations or warranties of or between the parties
(which are fully merged herein). The headings in this Sublease are for purposes
of reference only, and shall not limit or otherwise affect the meaning hereof.
Whenever necessary or appropriate, the neuter gender as used herein shall be
deemed to include the masculine and feminine; the masculine to include the
feminine and neuter; the feminine to include the masculine and neuter; the
singular to include the plural; and the plural to include the singular. This
Sublease shall not be binding upon Sublandlord for any purpose whatsoever unless
and until Sublandlord has delivered to Subtenant a fully executed duplicate
original hereof.
24. VALID AUTHORITY. Subtenant hereby represents and warrants
to Sublandlord that the execution, delivery and performance of this Sublease by
Subtenant: (i) does not conflict with any provisions of any instrument to which
Subtenant is a party or by which Subtenant is bound, and (ii) constitutes a
valid, legal and binding obligation of Subtenant.
25. SUBLEASE PROVISIONS CONTROL. If there is any conflict
between the terms and conditions of this Sublease and the terms and conditions
of any consent agreement required by Overlandlord, then, as between Sublandlord
and Subtenant, the terms and conditions of this Sublease shall control.
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IN WITNESS WHEREOF, Sublandlord and Subtenant have duly
executed this Sublease as of the day and year first written above.
SUBLANDLORD:
MERISANT COMPANY
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President, General Counsel
and Secretary
SUBTENANT:
THE DIGITAL OFFICE/DIGITAL HOME, LLC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
Member Manager
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