EXHIBIT 10.47
SUBLEASE
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AGREEMENT OF SUBLEASE (this "Sublease") made as of the 1st day of
September, 1996 between INFORMATION MANAGEMENT ASSOCIATES, INC., a Connecticut
corporation ("Sublandlord"), and TELEMAR SOFTWARE INTERNATIONAL, LLC, a Delaware
limited liability company ("Subtenant").
W I T N E S S E T H:
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WHEREAS, pursuant to an Agreement of Lease (the "Lease"), dated as of
October 6, 1993, by and between Xxxxxx X. Xxxxxx ("Prime Landlord"), as
landlord, and Sublandlord, as tenant, entered into a lease, annexed hereto as
Exhibit A, affecting the fourth (4th) floor (the "Prime Lease Premises") in the
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building known as Xxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx (the "Building"), as
amended on January 30, 1996, which such amendment is annexed hereto as Exhibit
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B. Hereinafter, the "Lease" as amended will be referred to as the "Prime Lease";
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and
WHEREAS, Sublandlord desires to sublease to Subtenant, and Subtenant
desires to sublease from Sublandlord, upon the terms and conditions set forth
herein, a portion of the Prime Lease Premises measuring approximately 4,718
square feet of rentable area, situated on the fourth (4th) floor of the Building
and substantially as shown hatched in Exhibit C annexed hereto (the "Subleased
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Premises").
NOW, THEREFORE, the parties hereto hereby covenant and agree as follows:
1. Subleased Premises. Sublandlord hereby subleases to Subtenant, and
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Subtenant hereby subleases and hires from Sublandlord, the Subleased Premises
upon the terms and conditions set forth herein.
2. Term.
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a. The term (the "Term") of this Sublease shall commence on September
1, 1996 (the "Commencement Date").
b. The Term, unless sooner terminated, or unless extended pursuant to
the extension option provided herein, shall expire on March 31, 2004.
3. Rent. The rent ("Rent") reserved for the Term under this Sublease
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shall consist of the following:
a. annual minimum rent ("Base Rent") of Fifty One Thousand Eight
Hundred and Four Dollars ($51,804), payable in equal monthly installments of
Four Thousand Three Hundred and Seventeen Dollars ($4,317), in advance, on the
first day of each and every month for the period of September 1, 1996 through
March 31, 1999; and
b. Base Rent of $76,290, payable in equal monthly installments of
$6,357 in advance, on the first day of each and every month for the period of
April 1, 1999 through March 31, 2004.
c. additional rent equal to 19% (representing the rentable area of the
Subleased Premises divided by the rentable area of the Prime Lease Premises)
("Subtenant's Proportionate Share") of that amount which is payable by
Sublandlord for additional rent under Article IV, Paragraphs 4.02 and 4.03 and
Article VIII, Paragraph 8.01 of the Prime Lease ("Additional Rent"); provided,
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however, Subtenant's Proportionate Share shall be reduced pro-rata in the event
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that Sublandlord exercises its option under the Prime Lease to rent expansion
space or otherwise rents additional space under the Prime Lease.
d. If Subtenant shall procure any additional services (other than
those referred to in Article IV of the Prime Lease in connection with Operating
Expenses) from Prime Landlord, Subtenant shall pay for such services at the
rates charged therefor by Prime Landlord and shall make such payment to
Sublandlord or Prime Landlord as Sublandlord shall direct; provided, however,
that with respect to any such charges that are reasonably attributable to both
Subtenant and tenants or occupants other than Subtenant, or to both the
Subleased Premises and premises other than the Subleased Premises, Subtenant
shall only be responsible for that portion reasonably attributable to Subtenant
or the Subleased Premises.
e. Additional Rent shall be payable by Subtenant within seven (7) days
after receipt of Notice from Sublandlord, provided that, notwithstanding the
foregoing, Subtenant shall not be obligated to pay Additional Rent to
Sublandlord earlier than ten (10) days before the date on which the same is
payable to Prime Landlord under the Prime Lease. The Parties agree that, subject
to the preceding Notice requirements, Subtenant's obligation hereunder to pay
Subtenant's Proportionate Share of Additional Rent payable by Sublandlord under
the Prime Lease, arises as and when Sublandlord is obligated to pay Additional
Rent under the Prime Lease, including when Sublandlord is obligated to pay
Additional Rent based on Prime Landlord's estimates of Additional Rent in
accordance with the terms of the Prime Lease; provided that if any Additional
Rent is finally determined under the Prime Lease to be greater or less than such
estimates, Subtenant shall be obligated to pay or entitled to receive, as the
case may be, Subtenant's Proportionate Share of such greater or lesser
difference, as and when Sublandlord is obligated to pay or entitled to receive
the same under the Prime Lease.
f. Except as otherwise specifically provided for herein, Rent shall be
paid by Subtenant to Sublandlord at the office of Sublandlord set forth above,
or such other place as Sublandlord may designate in writing, without prior
notice or demand therefor and without any abatement, deduction or setoff.
Sublandlord may at any time and from time to time direct Subtenant to pay all or
any portion of the Rent on Sublandlord's behalf
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directly to Prime Landlord at such address as Sublandlord may at any time and
from time to time direct.
4. Use. The Subleased Premises shall be used for the purpose of
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operating a general administrative business office as is described in paragraph
1.07 of the Prime Lease.
5. Services. Except as otherwise specifically provided in this
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Sublease, Subtenant shall be entitled during the Term to receive all services,
utilities, repairs and facilities which Prime Landlord is required to provide
pursuant to the Prime Lease, insofar as such services, utilities, repairs and
facilities pertain to the Subleased Premises ("Prime Landlord Services"),
provided that Sublandlord's sole obligation with respect to Prime Landlord's
default in its obligation to provide Prime Landlord Services, shall be to
request the same, upon written request by Subtenant, and to use its best efforts
to obtain the same from Prime Landlord. Subtenant shall have the right to
request the same directly from Prime Landlord, and to conduct such proceedings
(in court or elsewhere), as may be required, to obtain Prime Landlord Services.
Such proceedings may be, at Subtenant's option, in Subtenant's own name or in
Sublandlord's name, and Sublandlord agrees to cooperate with Subtenant in
connection therewith and to execute such documents as may be required in
connection therewith, all at no additional cost to Subtenant. Subtenant agrees
to reimburse Sublandlord for any reasonable legal or other expenses incurred by
Sublandlord in any such court or other proceeding, provided, however, that
Sublandlord shall bear its fair share of such costs and expenses to the extent
such action or proceeding does not relate to the Subleased Premises.
6. Prime Lease. The terms, provisions, covenants and conditions
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contained in the Prime Lease are hereby incorporated by reference into this
Sublease, except to the extent that the same are reasonably applicable only to
the original parties to or the landlord and tenant under the Prime Lease, or are
inconsistent with or modified by the agreements and understandings expressed in
this Sublease, and also subject, without limiting such general exceptions, to
the following specific exceptions, modifications and/or understandings:
a. As the context shall reasonably require, wherever used in the
Prime Lease, the words "Landlord" and "Tenant", or words of similar import,
shall be construed to mean, respectively, "Sublandlord" and "Subtenant" under
this Sublease; the word "Premises", or words of similar import, shall be
construed to mean the "Subleased Premises" under this Sublease; the word
"Lease", or the words "Rent", "Base Rent" and Additional Rent" under this
Sublease; and the words "Term", "Commencement Date" and "Initial Termination
Date", or words of similar import, shall be construed to mean, respectively,
"Term", "Commencement Date" and the date(s) set for the expiration of the Term
of this Sublease.
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b. To the extent reasonably possible, the provisions of the Prime
Lease incorporated by reference into this Sublease shall be construed as
consistent with and complementary to the other provisions of this Sublease, but
in the event of any inconsistency, said other provisions of this Sublease (i.e.,
those not incorporated by reference from the Prime Lease) shall control.
c. The portions of the Prime Lease described in Exhibit D annexed
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hereto shall not be deemed to be contained in this Sublease pursuant to
subparagraph 6.a. above, as between Sublandlord and Subtenant.
d. Each party hereto agrees to perform and comply with the terms,
provisions, covenants, and conditions of the Prime Lease and not to do or suffer
or permit anything to be done that would result in a default under or cause the
Prime Lease to be terminated or forfeited. Each party shall indemnify and hold
the other party harmless from and against all claims of any kind whatsoever by
reason of any breach or default on the part of the indemnifying party by reason
of which the Prime Lease may be terminated or forfeited. Sublandlord may not
terminate the Prime Lease without the prior written consent of Subtenant unless
Subtenant is in default under the Sublease. If Sublandlord fails to timely pay
any amount payable to the Prime Landlord or to timely perform any obligation as
required under the Prime Lease and as a result thereof Sublandlord or Subtenant
receives notice of default under the Prime Lease (unless such payment or
obligation is being contested or subject to a dispute between the Prime Landlord
and the Sublandlord), Subtenant shall have the right, but not the obligation,
upon prior notice to Sublandlord, to pay the amount claimed to be due or perform
such obligation set forth in such default notice. To the extent Subtenant makes
the payment described in the preceeding sentence, then Subtenant shall, at its
option, either (i) be credited as to its next succeeding payments due
Sublandlord under this Agreement with amount ultimately determined to be due the
Prime Landlord by Sublandlord or (ii) be entitled to a refund of the amount
determined to be due by Sublandlord to Prime Landlord immediately upon demand.
e. If Subtenant shall default in fulfilling any of the terms,
covenants, or agreements hereof, or of the Prime Lease as herein incorporated,
Sublandlord shall have all the rights against Subtenant as would be available to
Prime Landlord against the Tenant under the Prime Lease if such breach were by
the tenant thereunder.
f. Subtenant represents that it has read and is familiar with the
terms of the Lease and the amendment thereto, each of which are as annexed
hereto as Exhibits "A" and "B".
g. Sublandlord shall provide or cause Prime Landlord to provide, a
copy of any notice, consent, demand or other communication given under the
Prime Lease in connection with any claimed default under the Prime Lease by
either Sublandlord or
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Prime Landlord, concurrently with the giving of the same from Prime Landlord to
Sublandlord or from Sublandlord to Prime Landlord, as the case may be.
7. Assignment and Subletting.
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a. Subtenant shall not assign this Sublease or sub-sublet all or any
portion of the Subleased Premises (a "Transfer"), other than to an affiliate
without Sublandlord's prior written consent, which consent Sublandlord may
withhold in its sole discretion.
b. If the Subleased Premises is further sublet, assigned or occupied
by anybody other than Subtenant, Sublandlord may, after default by Subtenant,
collect rent from the subtenant, assignee or occupant, and apply the net amount
collected to the Rent herein reserved, but no such subletting, assignment,
occupancy or collection shall be deemed a waiver of Subtenant's covenants under
this Paragraph 7 or acceptance by Sublandlord or the subtenant, assignee or
occupant as subtenant hereunder, or a release of Subtenant from the performance
by Subtenant of any of the terms, covenants and conditions of this Sublease.
8. "As-Is" Condition. Subtenant accepts the Subleased Premises in its
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"as-is" condition as of the date hereof (except for latent defects) and
acknowledges that Sublandlord has made no representations with respect to the
condition thereof to Subtenant (except as may otherwise expressly provided
herein).
9. Quiet Enjoyment. Sublandlord covenants that, as long as Subtenant
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shall pay the Rent required to be paid hereunder and shall duly observe, perform
and comply with all of the terms, covenants and conditions of this Sublease on
its part to be observed, performed or complied with (subject to any applicable
notice and grace periods), Subtenant shall, subject to all of the terms of the
Prime Lease and this Sublease, peaceably have, hold and enjoy the Subleased
Premises during the Term without hindrance by Sublandlord.
10. Estoppel Certificates. At any time and from time to time, within
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ten (10) days after a written request from either Subtenant or Sublandlord,
Sublandlord or Subtenant (as the case may be) shall execute, acknowledge and
deliver to the other a written statement certifying (i) that this Sublease has
not been modified and is in full force and effect or, if there has been a
modification of this Sublease, that this Sublease is in full force and effect as
modified, and stating such modifications, (ii) the dates to which the Rent has
been paid, (iii) that to the best of such party's knowledge, no defaults exist
under this Sublease and the Prime Lease, if applicable, or, if any defaults do
exist, specifying the nature of each such default and (iv) as to such other
matters as either party may reasonably request.
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11. Building Directory. Sublandlord shall cause Prime Landlord to make
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available to Subtenant, space on the directory in the lobby of the Building, for
the listing of Subtenant's name.
12. Notices. Any notice, consent, demand or other communication (each
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a "Notice") which either party may or must give to the other hereunder shall be
in writing and delivered either by hand, by overnight courier, or registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
(i) if to Sublandlord:
Information Management Associates, Inc.
Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX
Attention: Xx. Xxxx Xxxxxxx
(ii) if to Subtenant:
Telemar Software International, LLC
Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX
Attention: Mr. Xxxxxx XxXxx
Any Notice shall be deemed delivered (i) at the time of delivery, if
delivered by hand, (ii) on the first business day after sending, if sent by
overnight courier, or (iii) two business days after sending, if sent by
registered or certified mail. Either party may, by Notice to the other, direct
that future Notices or copies thereof be sent to a different address(es) or
addressee(s).
13. Broker. Sublandlord and Subtenant each represents and warrants to
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the other that it has dealt with no brokers in connection with this Sublease.
14. Inability to Use Subleased Premises. In the event (i) 10% or more
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of the rentable area of the Subleased Premises shall be lawfully condemned, or
(ii) 25% or more of the rentable area of the Subleased Premises shall be
rendered untenantable by fire or other casualty for a period of ninety (90)
days, or (iii) access to the Subleased Premises shall be substantially impaired
for a period of ninety (90) days, then Subtenant shall have the right to
terminate this Sublease by giving to Sublandlord, within sixty (60) days after
the vesting of title in such condemnation or the expiration or either said
ninety (90) day period, a written notice specifying a date, not later than sixty
(60) days after the giving of such notice, for such termination.
15. Successors and Assigns. The covenants and agreements herein
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contained shall bind and inure to the benefit of Sublandlord, Subtenant, and
their respective successors and assigns.
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16. Complete Agreement. All prior understandings and agreements
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between the parties are merged within this Sublease, which alone fully and
completely sets forth the understanding of the parties.
17. Amendment, Waiver. This Sublease may not be amended or terminated,
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in whole or in part, nor may any of the provisions be waived, except by a
written instrument executed by the party against whom enforcement of such
amendment, termination or waiver is sought.
18. Captions. The captions and headings in this Sublease are inserted
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only as a matter of convenience for reference and are not to be given any effect
in construing this Sublease.
19. Partial Invalidity. If any of the provisions of this Sublease or
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the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Sublease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this Sublease shall be valid and enforceable to
the fullest extent permitted by law.
20. Governing Law. This Sublease shall be governed by the laws of
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Connecticut.
21. Prime Landlord's Consent. This Sublease shall not be effective
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until Prime Landlord shall have consented in writing to this Sublease as
required under Article XII of the Prime Lease; provided, however, that Subtenant
shall be responsible for the payment of rent and any other amounts due hereunder
as if this Sublease were effective as of September 1, 1996.
22. Alterations. Sublandlord hereby agrees not to unreasonably
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withhold or delay its consent to any alterations or improvements requested by
Subtenant provided such alterations or improvements have been approved by the
Prime Landlord.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed as of the day and year first above written.
SUBLANDLORD:
INFORMATION MANAGEMENT ASSOCIATES, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chairman and Chief
Financial Officer
SUBTENANT:
TELEMAR SOFTWARE INTERNATIONAL, LLC
By: /s/ Xxxxxx X. XxXxx, Xx.
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Name: Xxxxxx X. XxXxx, Xx.
Title: President and Chief
Executive Officer
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