EXHIBIT 10.44
SUBLEASE AGREEMENT
This Sublease made the 20th day of January, 1999 (this "Sublease") by and
between RMS INTERNATIONAL, INC., now doing business as VISTARMS, INC.
(hereinafter called "Sublandlord") and TEL-SAVE, INC., a Pennsylvania
Corporation (hereinafter called "Subtenant").
WITNESSETH:
WHEREAS, GEMINI AIR CARGO, INC., as successor-in-interest to POTOMAC
FINANCIAL GROUP, L.L.C., entered into that certain Lease dated as of October 26,
1995 with Reston Plaza Office L.L.C, as successor-in-interest to Aetna Life
Insurance Company, as lessor (hereinafter called "Prime Landlord"), for the
lease of certain premises on the second floor of Prime Landlord's building know
as Reston Plaza II, located at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000 containing approximately 3,723 square feet (the "Premises") per
Exhibit "A" attached to this agreement, to which lease (hereinafter the "Prime
Lease") reference is hereby made as if the same were fully set forth herein;
WHEREAS, RMS INTERNATIONAL, INC., entered into that certain Sublease
commencing on January 21, 1997 with GEMINI AIR CARGO, INC., as
successor-in-interest to POTOMAC FINANCLAL GROUP, L.L.C. ("First Sublandlord")
for the sublease of the Premises per Exhibit "B" attached to this agreement, to
which sublease (hereinafter the "First Sublease") reference is hereby made as if
the same were fully set forth herein;
WHEREAS, the parties to this Sublease have agreed that Sublandlord shall
sublet the premises to Subtenant.
NOW, THEREFORE, in consideration of the covenants set forth herein, the
parties covenant agree as follows:
1. Premises: Term. Sublandlord hereby subleases the Premises to Subtenant
for term ("Term") commencing on or about the earlier of occupancy by Subtenant
of the Premises or February 1, 1999 (the "Sublease Commencement Date") and
ending at 11:59 p.m. E.S.T. on November 30, 2000 (the "Sublease Expiration
Date'), unless sooner terminated in accordance herewith. Sublandlord has agreed
to paint the interior walls of the Premises, and agrees to shampoo and clean the
carpet before the Sublease Commencement Date; otherwise, Subtenant hereby
accepts the Premises in their "as-is" condition.
Sublandlord shall make available to Subtenant all parking spaces made
available to it under the First Sublease, being thirteen (13) parking spaces,
two (2) of which are covered, subject to the terms of Section 45 of the Prime
Lease.
2. Termination. Upon the expiration or sooner termination of the Prime
Lease for any reason, or upon the surrender of the Prime Lease by Sublandlord to
the Prime Landlord, at Prime Landlord's option, this Sublease Agreement and
Subtenant's rights hereunder shall
terminate as of the date of such expiration, termination or surrender, as the
case may be, and the Subtenant shall vacate the Premises on such date.
3. Rent. Subtenant shall pay the Sublandlord an annual rental at the rate
of Ninety Four Thousand Five and 75/100 Dollars ($94,005.75) per annum ("Basic
Rent"), in equal monthly installments of Seven Thousand Eight Hundred Thirty
Three and 81/100 Dollars ($7,833.81) per month ("Basic Monthly Rent"), plus the
Additional Rent as hereinafter defined in Paragraph 4 below (the Additional Rent
and the Basic Rent hereinafter collectively referred to as "Rent"). The first
installment of Basic Monthly Rent shall be due and payable upon the execution
hereof. On each anniversary of the Sublease Commencement Date, the Basic Rent
shall be increased by an amount equal to five percent (5%) of the Basic Rent in
effect during the preceding Lease Year. Except as otherwise provided herein,
Subtenant shall pay the Rent in equal monthly installments in advance on the
first day of each and every month during the Term. In the event that at any time
during the Term, Subtenant shall have a claim against Sublandlord, Subtenant
shall have no right to deduct the amount allegedly owed Subtenant from the Rent
or other sums payable to Sublandlord hereunder, it being understood and agreed
that Subtenant's sole remedy in such event shall be to institute and independent
action against Sublandlord therefor.
Subtenant shall receive a rent abatement of its rent under this Sublease to
the extent the First Sublandlord is entitled to a rent abatement under Article 8
and 13 of the Prime Lease. Subtenant shall have a right to terminate the
Sublease to the extent the First Sublandlord is entitled to terminate the Prime
Lease pursuant to Article 13 of the Prime Lease.
4. Additional Rent. Subtenant shall not pay Tenant's Share of Property
Taxes pursuant to Section 10 of the Prime Lease or Tenant's Share of Operating
Costs pursuant to Section 9 of the Prime Lease. With respect to any other
additional rent or other sums charged to Sublandlord, Subtenant shall pay for it
at the rates charged by Prime Landlord under the Prime Lease. If Subtenant
procures any additional services from the Prime Landlord, Subtenant shall pay
for it at the same rates charged by the Prime Landlord and shall make such
payments as Prime Landlord may direct. All sums payable by the Subtenant under
this paragraph 4 shall be deemed "Additional Rent" and shall be collectable as
such.
5. Services. Except as otherwise provided herein, the only services or
rights to which Subtenant is entitled under this Sublease Agreement are those to
which Sublandlord is entitled as lessee under the Prime Lease and Subtenant will
look solely to Prime Landlord for all such services and rights, but (at
Subtenant's request) Sublandlord shall assist Subtenant with obtaining such
services and rights.
6. Permitted Uses. The Premises shall be used for general office purposes
and related uses only and for no other purpose. Subtenant shall not use or
occupy the Premises, nor permit the Premises to be used or occupied, for any
illegal purposes or in any unlawful or illegal manor nor in any manner to create
any nuisance or trespass.
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7. Compliance: Indemnification. Subtenant shall neither cause nor suffer
any act or omission that would cause the Prime Lease to be terminated or
forfeited because of any right of termination or forfeiture reserved or vested
in the Prime Landlord, and Subtenant will indemnify, defend and hold Sublandlord
harmless against all claims of any kind by reason of any breach or default on
the part of or by Subtenant's officers, agents, employees, contractors, invitees
or licensees, by reason on which the Prime Lease may be terminated or forfeited.
Subtenant represents that it has read and is familiar with the terms of the
Prime Lease.
Sublandlord agrees that Sublandlord will not (i) take any action or omit to
take any action which would constitute a voluntary surrender under the First
Sublease or a default thereunder resulting in the termination of this Sublease
and/or Subtenant's eviction hereunder or (ii) amend the First Sublease without
the consent of Subtenant. Sublandlord agrees to pay in a timely fashion the base
rent, additional rent and any other charges payable by Sublandlord to First
Sublandlord under the First Sublease and to comply with all other obligations
under the First Sublease and the Prime Lease.
8. Hold Harmless. Subtenant hereby agrees to indemnify, defend and hold
Prime Landlord and Sublandlord harmless against all costs, damages, claims,
liabilities and expenses (including, without limitation, attorneys' fees)
suffered by or claimed against Sublandlord, directly or indirectly, based on,
arising out of or resulting from (i) Subtenant's use and occupancy of the
Premises or the business conducted by Subtenant therein, (ii) any act of
omission by Subtenant or Subtenant's agents, officers, employees, contractors,
invitees or licensees, or (iii) any breach or default by Subtenant in the
performance or observance of its covenants or obligations under this Sublease
(including the covenants and obligations of the Subtenant under the Prime Lease
as incorporated herein).
9. Assignment: Subletting. Subtenant shall not assign this Sublease or
sublet the Premises in whole or in part, and shall not permit Subtenant's
interest in this Sublease to be encumbered or vested in any third party by
operation of law or otherwise, unless prior written approval is obtained by
Sublandlord, First Sublandlord and Prime Landlord.
Notwithstanding anything contained herein to the contrary, Subtenant shall
have the right (upon written notice to Sublandlord, First Sublandlord and Prime
Landlord), without the requirement of obtaining any of such parties' consent,
(i) to assign this Sublease or sublease all or any portion of the Premises to an
entity which is the parent of Subtenant, subsidiary of Subtenant, affiliate of
Subtenant, or shall directly or indirectly control, be controlled by or be under
common control with Subtenant and (ii) to assign this Sublease in connection
with the sale of all or substantially all of Subtenant's business or a merger or
consolidation of Subtenant (or its parent) into or with another company to such
acquirer or succeeding entity.
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10. Notices. Any notice or demand which either party may or must give to
the other under this Sublease Agreement shall be in writing and delivered
personally or sent by registered or certified mail addressed if to Sublandlord
as follows:
VistaRMS
000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx, Office Manager
AND IF TO SUBTENANT, PRIOR TO THE SUBLEASE AND TO SUBTENANT AFTER THE SUBLEASE
COMMENCEMENT DATE, AS FOLLOWS: COMMENCEMENT DATE, AS FOLLOWS:
Tel-Save, Inc. Tel-Save, Inc.
0000 Xxxxx 000 00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxxxx 00000 Suite 250
Attn: Xxxxxxx Xxxxxxxx, CEO Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx, CEO
with a copy in both cases to:
Xxxxxx & Xxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxxx Xxxxxxx
Either party may, by notice in writing, direct that future notices or demand be
sent to a different address. Notice shall be deemed to have been given when
received by the parry to whom addressed (or the date which delivery is refused,
as the case may be).
11. No Partnership. Nothing herein contained in this Sublease Agreement
shall be deemed or construed as creating the relationship of principal and agent
or of partnership or joint venture between the parties hereto; it being
understood and agreed that no act of the parties hereto shall be deemed to
created any relationship other than that of Sublandlord and Subtenant.
12. Insurance. Subtenant agrees to maintain casualty and liability
insurance coverage with respect to the Premises and with limits of liability and
deductibles as required under the Prime Lease. Prior to the Sublease
Commencement Date, Subtenant shall provide Sublandlord with a certificate of
insurance evidencing such insurance coverage.
13. Incorporation. Except as may be inconsistent with the terms of this
Sublease Agreement, which is subject and subordinate to the Prime Lease, all the
terms, covenants and conditions of the Prime Lease, excepting the provisions
contained therein with respect to (a) the Security Deposit, (b) any options to
renew the Term, or (c) any options to cancel the Prime Lease
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(excluding the option to terminate pursuant to Section 13 of the Prime Lease),
shall be applicable to this Sublease Agreement with the same force and effect as
if Sublandlord were the lessor under the Prime Lease and Subtenant were the
lessee thereunder; and in case of any breach by Subtenant, Sublandlord shall
have all the rights against Subtenant as would be available to the lessor
against the lessee under the Prime Lease, Sublandlord shall in addition, upon
the occurrence of any breach by Subtenant and the failure to cure the same on or
before the expiration of three (3) days notice thereof, be entitled to recover
from Subtenant the cost of the removal of Subtenant and Subtenant's property
from the Premises.
14. Binding Agreement. The covenants and agreements herein contained shall
bind and insure to the benefit of Sublandlord, Subtenant, and their respective
executors, administrators, successors and assigns; however, this provision shall
not be deemed to authorize any violation of Section 9 hereof.
15. Complete Agreement. All prior understandings and agreements between the
parties are merged within this Sublease Agreement, which alone fully and
completely sets forth the understanding of the parties, and this Sublease may
not be changed or terminated orally or in any manner other than by an agreement
in writing and signed by the party against whom enforcement of the change or
termination is sought.
Sublandlord represents and warrants to Subtenant that the Prime Lease
attached hereto as Exhibit A and the First Sublease attached hereto as Exhibit B
are true, correct and complete copies thereof. Sublandlord represents and
warrants to Subtenant that, to Sublandlord's knowledge, (i) there is no default
by either Prime Landlord or First Sublandlord under the Prime Lease or by either
First Sublandlord or Sublandlord under the First Sublease and (ii) the Prime
Lease and the First Sublease are in full force and effect.
16. Security Deposit. Upon the execution hereof, Subtenant shall deliver to
Sublandlord a security deposit in the amount of Seven Thousand Eight Hundred
Thirty-Three and 81/100 Dollars ($7,833.81) (the "Security Deposit") as security
for the payment and performance by Subtenant of all of its obligations,
covenants, conditions and agreements hereunder. The Security Deposit shall not
be considered a prepayment of rent or a limit on Subtenant's liability under the
Sublease or as liquidated damages. If there is an event of default by Subtenant
hereunder, Sublandlord shall have the right, but shall not be obligated, to
apply the Security Deposit as is reasonably necessary to cure such default, in
which event Subtenant shall be obligated to promptly deliver to Sublandlord the
cash amount necessary to restore the Security Deposit to its original amount,
the Subtenant's failure to do so within ten (10) days after notice of demand
therefor from Sublandlord shall constitute an event of default under the
Sublease entitling Sublandlord without further notice to all of its remedies
under the Sublease; provided, however, such defaults and Subtenant's liability
under the Sublease shall thereby be discharged only pro tanto and Subtenant
shall remain liable for any amounts that said Security Deposit shall be
insufficient to pay. Sublandlord agrees to return the Security Deposit to
Subtenant within fifteen (15) days of the Sublease Expiration Date. In addition,
Sublandlord agrees to pay Subtenant all accrued interest collected on the
Security Deposit, net of taxes.
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17. Brokers. Upon execution of this Sublease by both parties, Sublandlord
shall pay to Xxxxx and Xxxxx a commission as set forth in a separate agreement
between Sublandlord and said brokers, for brokerage services rendered to
Sublandlord in this transaction. Except as aforesaid, the parties represent and
warrant to each other that they have dealt with no other broker or finder in
connection with this transaction.
18. Prime Landlord's and First Sublandlord's Consent. It is understood and
agreed by the parties hereto that acceptance of this Sublease by the Sublandlord
shall be subject to the consent of the Prime Landlord pursuant to Section 20 of
the Prime Lease and of the First Sublandlord pursuant to the First Sublease.
Sublandlord shall not be liable in any manner to Subtenant should Prime Landlord
or First Sublandlord reject the Sublandlord's request for approval of this
Sublease. Subtenant shall use reasonable efforts to cooperate with Sublandlord
to provide the information required by Prime Landlord with respect to this
Sublease. Sublandlord hereby acknowledges to First Sublandlord that,
notwithstanding this Sublease, Sublandlord shall in no way be released or
relieved, in whole or part, from Sublandlord's covenants as "Subtenant" under
the First Sublease. In the event Prime Landlord or First Sublandlord refuses to
consent to this Sublease, then upon ten (10) days following written notice
thereof from Sublandlord, Subtenant shall vacate the Premises. Notwithstanding
the foregoing, in the event that Subtenant fails to vacate the Premises, within
such ten (10) day period (i) Prime Landlord or Sublandlord may forthwith reenter
and take possession of said Premises, and (ii) Subtenant shall pay Sublandlord
an amount equal to twice the monthly payment of Basic Monthly Rent in effect
immediately prior to the expiration of the Term, however, the foregoing shall
not be deemed to limit Subtenant's liability arising from any wrongful holding
over. This Sublease may be executed in two or more counterparts, each of which
when incorporated together shall constitute an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
executed as of the day and year first above written:
WITNESS: SUBLANDLORD:
VistaRMS, Inc.
By: By: [Seal]
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Its: President
WITNESS: SUBTENANT::
Tel-Save, Inc.
By: By: [Seal]
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Its:
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CONSENT OF PRIME LANDLORD
Reston Plaza Office L.L.C. (the "Prime Landlord"), owner of the Premises
hereinabove subleased and Prime Landlord under the Prime Lease, in accordance
with the provision of Section 20 of the Prime Lease, hereby consents to this
Sublease Agreement upon the terms stated herein, and such approval is being
issued on the condition that neither Gemini Air Cargo, L.L.C. nor RMS
International, Inc. (dba Vistarms, Inc.) shall be relieved from primary
liability for all obligations of the Tenant under the Prime Lease and on the
condition that this approval does not amend or modify the actual terms of the
Prime Lease in any manner.
In accordance with Section 20 of the Prime Lease, Tel-Save, Inc. shall be
directly liable to Prime Landlord for all obligations of Gemini Air Cargo,
L.L.C. under the Prime Lease and Tel-Save, Inc. by executing the Sublease
Agreement, hereby assumes all such obligations. Tel-Save, Inc. acknowledges that
such obligations include, without limitation, the obligation under Section 20 of
the Prime Lease to pay directly to Prime Landlord, as "Additional Rent," fifty
percent (50%) of the excess of (i) the "Basic Rent" payable under the Sublease
Agreement over (ii) the "Basic Rent" payable under the Prime Lease.
PRIME LANDLORD:
RESTON PLAZA OFFICE, L.L.C.
WITNESS: By: LASALLE ADVISORS
LIMITED
PARTNERSHIP, Advisor and
Duly Authorized Agent
By:
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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CONSENT OF GEMINI AIR CARGO
Gemini Air Cargo, Inc., First Sublandlord of the Premises hereinabove
subleased in accordance with the terms of the First Sublease hereby consents to
this Sublease Agreement upon the terms stated herein, and such approval is being
issued on the condition that RMS International, Inc., now doing business under
VistaRMS, Inc., will not be relieved from primary liability for all obligations
of the Subtenant under the First Sublease Agreement and on the condition that
this approval does not amend or modify the actual terms of the First Sublease in
any manner.
The undersigned agrees that it will not be relieved from primary liability
for all obligations of the Tenant under the Prime Lease.
FIRST SUBLANDLORD:
GEMINI AIR CARGO, INC.
WITNESS:
By:
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Name:
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Title:
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