EXHIBIT 10.37
Dated the 19th
day of September 2001
THE X. X. XXXXXX COMPANY
INC.
One Part
-AND-
PIVOTAL
TECHNOLOGIES
CORPORATION LIMITED
Other Part
SUB-LEASE
XXXXXX XXX
Solicitors
Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxx 0
THIS SUB-LEASE dated the
19th day of September 2001
BETWEEN
(1) |
THE X. X. XXXXXX COMPANY INC. having its principal office at 000
Xxxxxxxxxx Xxxxxx, Xxxxx, Xxx Xxxx 00000, XXX and with an address at Xxxxxx House,
Fenian Street in the City of Dublin (hereinafter called "the Landlord" which expression shall
include whoever for the time being owns the interest in the property which gives
the right to possession of it when this Sub-Lease ends) |
AND
(2) |
PIVOTAL TECHNOLOGIES CORPORATION LIMITED having its registered office at
00 Xxxxxxx Xxxxxx, Xxxxxx 0 (hereinafter referred to as “the Tenant”
which expression shall include whoever for the time being is entitled to the
property under this Sub-Lease) |
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1.1 |
Whenever a party to this Sub-Lease is more than one person, all their respective
obligations can be enforced against each of them jointly and against each
individually; |
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1.2 |
A reference to an Act of the Oireachtas refers to that Act as it applies at the
date of this Sub-Lease and any later amendment or re-enactment of it; |
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1.3 |
Any obligation to pay money refers to a sum exclusive of value added tax ("VAT")
and any VAT charged on it is payable in addition; |
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2.1 |
“The Head Lease” means the lease dated 29th of October 1992
and made between Dwale Limited (the “Superior Landlord”) of the one
part and the Landlord of the other part together with Supplemental Lease
(hereinafter separately called “the Supplemental Lease”) dated
11th June, 1996 made between the same parties. |
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2.2 |
“Initial Rent” means IR(pound)133,380 per annum; |
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2.3 |
“Interest” means interest at the rate defined as the prescribed
rate in the Head Lease; |
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2.4 |
“the Property” means that part of the Xxxxxx Xxxxx xx Xxxxxx Xxxxx,
Xxxxxx Xxxxxx, Xxxxxx 0 as is more particularly described in and demised by the
Supplemental Lease and coloured yellow on the map annexed hereto for
identification purposes only together with the right to the exclusive use of two
car parking spaces as designated from time to time by the Landlord for use by
the Tenant within the cartilage of Xxxxxx House together with all necessary
rights of access thereto in common with all others entitled to such access and
where appropriate with the benefit of the rights mentioned in the Head Lease and
where appropriate subject to the rights of others mentioned in the Head Lease. |
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2.5 |
“Quarterly Xxxx Days” means the 12th day of January, 12th day of April,
12th day of July and 12th day of October in every year of the Term; |
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2.6 |
“Rent Review Date” means the 12th day of October in the year 2002. |
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2.7 |
“the Superior Landlord” means whoever for the time being owns the
interest in the Property which gives the right to possession of it when the Head
Lease ends. |
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2.8 |
“Insured Risk”, “Building” and “Service Charge”
shall have the same meaning as defined in the Head Lease. |
| 3. |
In exchange for the obligations undertaken by the Tenant the Landlord lets the
Property to the Tenant for the period commencing on the 22nd day of
September 2001 and expiring on the 10th day of October 2007
(hereinafter called “the Term”) on the Tenant agreeing to pay: |
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3.1 |
yearly and proportionately for any fraction of a year, the Initial Rent and from
and including the Rent Review Date, such yearly rent as shall become payable
under and in accordance with the provisions of Clause 6.1 of this Sub-Lease and
in each case to be paid by Standing Order to the credit of such account as the
Landlord may from time to time notify to the Tenant by equal quarterly
installments in advance on the Quarterly Xxxx Days without any deduction,
set-off or counterclaim whatsoever (the first and last payments being
proportionate sums if appropriate, the first payment being made on the date of
this Sub-Lease); and |
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3.2 |
and as further rent (“insurance rent”) the entire of the sums the
Landlord spends each year during the Term as required by the Supplemental Lease
to reimburse the Superior Landlord for the cost of insuring the Property,
including insuring against loss of rent and Service Charge. |
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| 4. |
The Tenant agrees with the Landlord:: |
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4.1 |
To pay the rents or increased rents reserved by this Sub-lease and referred to
at paragraph 3 hereof and any additional sums payable herein at the times
and in the manner herein prescribed for the payment of same. |
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4.2 |
To pay the insurance rent on the next quarter day after being notified of the
amount of it. |
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4.3 |
To pay the entire of the service charge payable by the Landlord under the
Supplemental Lease provided always that it is hereby agreed and declared by and
between the parties hereto that the Tenant shall not be obliged to contribute
towards the replacement or major repair of the exterior fabric of the building
or the plant and machinery (but for the avoidance of doubt will contribute
towards cost of servicing/periodic repair of such plant and machinery) and the
Tenant’s liability hereunder shall be reduced accordingly where
appropriate. Each installment shall be paid by Bank Standing Order into the same
account into which rent is payable under Clause 3 hereof. The Landlord shall
give to the Tenant reasonable evidence of the amount payable under the
Supplemental Lease. |
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4.4 |
Not to reduce any payment of rent by making any deduction from it or by
setting any sum off against it. |
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4.5 |
To pay and indemnify the Landlord against all existing and future rates, taxes,
duties, charges, assessments, impositions and outgoings whatsoever (whether
parliamentary, parochial, local or of any other description and whether or not
of a capital or non-recurring nature or |
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of a wholly novel character) which now are or may at any time during the term
be charged, levied, assessed or imposed upon or payable in respect of the Property
(including the car spaces) or upon the owner or occupier of them (excluding any tax
payable by the Landlord occasioned by any disposition of or dealing with the
reversion of this Sub-lease or any other Landlord’s capital tax). |
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4.6 |
To pay Interest on any rent or other sum payable hereunder which is paid more
than fourteen days after it falls due. |
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4.7 |
To comply with the obligations, so far as they relate to the Property,
undertaken in the Head Lease by the person named in it as tenant, except the
obligations therein to pay rent, insurance rent, and service charge and any
contribution towards the replacement or major repair of the exterior fabric of
Xxxxxx House or the plant and machinery therein. |
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4.8 |
Not to assign, transfer, underlet, or part with the possession or occupation of
the Property or any part thereof or suffer any person to occupy the Property or
any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing
the Landlord shall not unreasonably withhold or delay its consent to an
assignment or underletting of the entire of the Property to an assignee or
underlessee of good and sufficient financial standing and otherwise reasonably
acceptable to the Landlord subject to the prior written consent of the Superior
Landlord and the following provisions or such of them as may be appropriate,
that is to say: |
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4.8.1 |
The Tenant shall prior to any such alienation as aforesaid apply to the Landlord
and give all reasonable information concerning the proposed transaction and
concerning |
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the proposed transaction and concerning the proposed assignee, under-lessee or
disponee as the Landlord may reasonably require. |
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4.8.2 |
The Landlord’s consent to any such alienation shall be in writing and shall
be given in such manner as the Landlord shall reasonably decide and the Tenant
shall pay the reasonable costs of the Landlord in connection with the furnishing
of such consent. |
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4.8.3 |
In the case of an assignment to a limited liability company, it shall (where
appropriate) be deemed reasonable for the Landlord to require that two directors
of standing satisfactory to the Landlord shall join in such consent as aforesaid
as sureties for such company in order jointly and severally to covenant with the
Landlord in the manner described in the guarantee contained herein (mutatis
mutandis). |
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4.8.4 |
In the case of an under-lease the same shall be of the entire of the Property
and shall be made without taking a fine or premium at a rent which shall not be
less than the rent payable hereunder at the time of the granting of such
underlease and the under-lessee shall, if required by the Landlord, enter into a
direct covenant with the Landlord to perform and observe all the covenants
(other than that for payment of the rents hereby reserved) and conditions herein
contained and every such underlease shall also be subject to the following
conditions, that is to say that it shall contain: |
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4.8.4.1 |
provisions for the review of the rent thereby reserved (which the Tenant hereby
covenants to operate and enforce) on an upwards only basis corresponding both as
to terms and dates and in all other respects (mutatis mutandis) with the rent
review provisions contained in this Lease; |
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4.8.4.2 |
a covenant, condition or proviso under which the rent from time to time payable
under such under-lease shall not be less than the rent from time to time payable
hereunder. |
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4.8.4.3 |
a covenant by the undertenant (which the Tenant hereby covenants to enforce)
prohibiting the undertenant from doing or suffering any act or thing upon or in
relation to the Property inconsistent with, or in breach of, the provisions of
this Lease; |
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4.8.4.4 |
a condition for re-entry on breach of any covenant by the undertenant; |
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4.8.4.5 |
the same restrictions as to alienation, assignment, underletting, parting with or
sharing the possession or occupation of the premises underlet; |
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4.8.5 |
To enforce at the Tenant’s own expense the performance and observance by
every such undertenant of the covenants, |
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provisions and conditions of the underlease and not, at any time, either
expressly or by implication, to waive any breach of the same; |
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4.8.6 |
Not to agree any reviewed rent with the undertenant nor any rent payable on any
renewal thereof without the prior written consent of the Landlord (such consent
not to be unreasonably withheld); |
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4.8.7 |
Not to vary the terms or accept any surrender of any permitted under-lease
without the prior written consent of the Landlord, such consent not to be
unreasonably withheld or delayed. |
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4.9 |
To pay the stamp duty payable on this Sub-lease and counterpart and any VAT
payable on the granting of, or the rent payable under this Sub-Lease. |
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4.10 |
The Tenant shall not knowingly do, omit, suffer or permit in relation to the
Property any act or thing which would or might cause the Landlord to be in
breach of the Head Lease or which if done, omitted or suffered or permitted by
the Landlord would or might constitute a breach of the covenants on the part of
the tenant and the conditions contained in the Head Lease. |
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4.11 |
The Tenant shall permit the Landlord and all persons authorized by the Landlord
(including agents, professional advisers, contractors, workmen and others) upon
reasonable notice (except in the case of emergency) to enter upon the Property
for any purpose which is necessary to enable the Landlord to comply with the
covenants and the conditions contained in the Head Lease insofar as the Tenant
does not expressly covenant to |
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observe and perform the same or insofar as they
relate to premises not hereby demised but otherwise contained in the Head Lease
and the Landlord in so doing shall exercise all reasonable care and shall
minimize the disturbance caused to the Tenant. |
5 |
The Landlord agrees with the Tenant: |
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5.1 |
So long as the Tenant does not contravene any term of this Sub-Lease to allow
the Tenant to exclusively possess and use the Property without interference from
the Landlord, anyone who derives title from, or as Trustee for, the Landlord or
anyone from whom the Landlord derives title. |
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5.2 |
To comply with its obligations where appropriate and pay the rents and other
sums payable under the Head Lease promptly. |
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5.3 |
To take all reasonable steps to enforce promptly the obligations undertaken by
the Superior Landlord in the Head Lease including without prejudice to the
generality of the foregoing to use all reasonable endeavors to procure the
provision of the services by the Superior Landlord under the Head Lease and to
procure evidence of the calculation of the Service Charge when requested. |
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6.1 |
The rent payable under this Sub-lease is calculated at the rate of £30 per
square foot plus £1,250 for each car parking space which the Tenant is
entitled to use hereunder. There is a rent review on the 12th day of
October 2002 under the Head Lease. As and from the Rent Review |
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Date in the Head Lease, the rent payable under this Sub-Lease shall be increased to the same
amount per square foot as is payable under the Head Lease together with a
further £1 per square foot (ie a further £3,696) which additional
amount is to cover the management and administrative costs incurred by the
Landlord in respect of this Sub-Letting. The Landlord shall consult with the
Tenant prior to agreeing the review of rent under the Head Lease. |
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6.2 |
The Landlord is entitled to forfeit this Sub-lease by entering any part of the
Property whenever the Tenant: |
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6.2.1 |
is twenty one days late in paying any rent even if it was not formally demanded; |
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6.2.2 |
has not complied with any obligation in this Sub-lease having been called on
to do so; |
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6.2.3 |
being an individual or if more than one, any one of them is adjudicated bankrupt
or compounds or arranges with its creditors; |
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6.2.4 |
when a company goes into liquidation unless that is solely for the purpose of
amalgamation or reconstruction when solvent or it permits or suffers a receiver
to be appointed over its assets. |
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Provided Always that such forfeiture shall be without prejudice to any rights or remedies
that may have accrued to the Landlord against the Tenant in respect of any
antecedent breach of covenant or other term of this Lease including the breach
in respect of which the forfeiture is made. |
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6.3 |
During any period not exceeding three years when all or part of the Property
cannot be put to its accustomed use because of damage to the Property or the
Building or to its essential accesses from an insured risk as defined in the
Head Lease the Initial Rent or increased rent reserved by this Sub-Lease is to
be cancelled or reduced as appropriate unless or to the extent that the insurers
do not pay under the policy because of something done or not done by the Tenant.
In the event that the Property is not reinstated to its former condition within
the three year period commencing on the date of damage occurring either party
may determine this Sub-Lease by service of notice in writing on the other
whereupon all the liability of either party to the other shall cease but without
prejudice to any antecedent breach of the terms hereof by either party. Any
dispute whether and how this clause applies is to be referred to arbitration. |
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6.4 |
Any disputed matter referred to arbitration under this Sub-Lease is to be
decided by arbitration under the Arbitration Acts 1954 to 1980 by a single
arbitrator appointed by the parties to the dispute. If they do not agree on that
appointment the then President of the Incorporated Law Society of Ireland may
appoint the arbitrator at the request of any party. |
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6.5 |
Any notices requiring to be served on the Tenant hereunder shall be validly
served if left addressed or sent by post to the Tenant (or if there shall be
more than one of them to any one or more of them) at the Property or at the last
known address or addresses of the Tenant or any of them in the Republic of
Ireland and any notice required to be served on the Landlord shall be validly
served if left or posted to the registered office of the Landlord and any such
notice may be served by |
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the Landlord’s servants and agents and be served on
the Tenant’s servants or agents. |
IT IS HEREBY CERTIFIED for
the purposes of Section 45 of the Land Xxx 0000 that the Property is situate in
the County Burough of Dublin.
IT IS HEREBY FURTHER
CERTIFIED that Section 53 (lease combine with building agreement for
dwellinghouse/apartment) of the Stamp Duties Consolidation act 1999, does not
apply to this instrument.
IT IS HEREBY FURTHER
CERTIFIED that the consideration herein is wholly attributable to property
which is not residential property and that the transaction hereby effected does
not form part of a larger transaction or of a series of transactions in respect
of which the amount or value or the aggregate amount or value of the
consideration other than rent which is not residential property exceeds
£5,000.
IT IS HEREBY FURTHER
CERTIFIED for the purposes of Section 29 of the Companies Xxx 0000 that the
Landlord and the Tenant are not bodies corporate connected with one another in a
manner which would require this transaction to be ratified by resolution of
either.
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IN WITNESS where the
parties hereto have caused their Common Seals to be affixed the day and year
first herein written.
PRESENT when the Common Seal of the
Landlord was affixed hereto: |
)
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[GRAPHIC OF SEAL]
PRESENT when the Common Seal of the
Tenant was affixed hereto: |
)
) |
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MATSACK TRUST LIMITED
PER [Illegible]
SECRETARY
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