Exhibit 4.11
THIS INDENTURE made the 10th day of August 2001 between CYRIL AND JOHN McGUIRE
of 12 Knocknacree Park, Dalkey in the County of Dublin (hereinafter called "the
Landlord" which expression shall where the context so admits or requires include
the person or persons for the time being entitled to the reversion immediately
expectant on the term hereby granted) of the One Part and TRINTECH GROUP PLC of
South County Business Park, Leopardstown, Dublin 18 (hereinafter called "the
Tenant" which expression shall where the context so admits or requires include
his executors administrators and assigns) of the Other Part.
DEFINITIONS:
In these presents and in the schedules hereto (save where the context otherwise
requires or implies) the following words and expressions shall have the meanings
assigned to them hereunder:
"the retained premises" means the premises demised and held by the Landlord
under an Indenture of Lease dated the 25th day of November 1998 excepting
that part of the premises described in and comprised by the First Part of
the Schedule hereto.
"conduits" means gutters gullies pipes drains sewers watercourses channels
ducts flues mains wires cables and other conducting media.
"utilities" means water water-tanks soils and waste of all kinds gas
electricity telephone fire fighting equipment and other services including
any plant machinery apparatus and equipment to operate or required for the
utilities.
"machinery" means all plant machinery apparatus and equipment required from
time to time for the purpose of the demised premises including but without
prejudice to the generality of the foregoing the lift central heating/ air
conditioning plant (if any) and fittings and equipment.
1
"the Landlord's Surveyor" means the person or persons appointed by the
Landlord for the purposes of specified herein.
WITNESSETH as follows:-
DEMISE
1. IN consideration of the yearly rents (and the increases thereof as
hereinafter provided) and the covenants on the part of the Tenant and the
conditions hereinafter reserved and contained the Landlord HEREBY DEMISES
unto the Tenant ALL THAT AND THOSE the premises more particularly described
in the First Part of the Schedule hereto together with the easements and
rights specified in the Second Part of the said Schedule (hereinafter
collectively referred to as "The Demised Premises").
EXCEPTIONS
1.1. EXCEPTED AND RESERVED unto the Landlord and any Superior Landlord's and
their tenants servants agents licensees and all other persons entitled from
time to time thereto:-
1.1.1. the free right of uninterrupted passage and running of the
utilities from and to any adjoining or neighbouring property through
the conduits which may at any time during the said term be through in
over or under the demised premises or otherwise together with full
right of access at all reasonable times (on giving due notice in
writing except in cases of emergency) for the purposes of installing
adding to inspecting maintaining replacing and repairing the
2
same the person or persons exercising such right causing a minimum of
inconvenience to the Tenant (but not being responsible for any
temporary inconvenience) having regard to the nature and cost of the
work involved and making good any damage thereby occasioned to the
demised premises.
1.1.2. full right and liberty on giving due notice in writing (except
in case of emergency) at all times during the said term to enter the
demised premises in order to lay maintain replace relay or redesign
the conduits the utilities and the machinery and all other services to
and from adjoining or adjacent premises the person or persons
exercising such right causing a minimum of inconvenience to the Tenant
(but not being responsible for any temporary inconvenience) having
regard to the nature and costs of the work involved and making good
any damage thereby occasioned.
1.1.3. full right and liberty at any time hereafter to execute works and
make erections upon or to erect, rebuild the demised premises or any
buildings or erections on their adjoining and neighbouring lands or to
build unto or into any party structure and to use the adjoining and
neighbouring lands and buildings in a manner which is satisfactory to
the Landlord and Tenant notwithstanding that the access of light and
air to the demised premises or any part thereof may be thereby
diminished provided such diminution of light and air is not
unreasonable.
1.1.4. all mines and minerals in or under the demised premises with full
power or working and getting same reasonable compensation being made
for any damage occasioned to the demised premises.
1.1.5. all rights easements and privileges now belonging
3
to or enjoyed by the Landlord in the demised premises or by any
adjoining or neighbouring property.
1.1.6. the airspace over the demised premises.
HABENDUM
TO HOLD the demised premises unto the Tenant from the 1st day of April Two
Thousand and One for a term of twenty-five years, SUBJECT to the right reserved
to the Tenant to terminate its tenancy in the demised premises at the end of the
eighth year after the commencement date being the 1st of February 2009 and
subject to:-
(1) The Tenant giving six months notice in writing to the Landlord of its
intention to terminate its interest in the demised premises.
(2) All payments of rent being up to date.
(3) The satisfactory performance of all other conditions under this Lease being
performed on the date of service of the notice of termination.
(4) In addition to all rent and other payments under the lease being met by the
Tenant a further payment by the Tenant to the Landlord to accompany the
notice of termination equal to twelve months rent at the rate then
prevailing.
REDDENDUM
YIELDING AND PAYING therefore during each of the first five years of the said
term the yearly rent of IR(pound)674,100.00 (E 855,930.45)(being the sum of
IR(pound)617,400 (E 783,936.28) in respect of the demised premises and the sum
of IR(pound)56,700.00 (E 71,994.15) in respect of 81 car parking spaces) without
any deduction and thereafter during each of the successive periods of five years
of
4
which the first shall begin on the 1st day of February 2006, a rent equal to (a)
the rent payable hereunder during the preceding period or (b) such revised rent
as may from time to time be ascertained in accordance with the provisions of
clause 2 hereunder (whichever shall be the greater) without any deduction all
rent throughout the entire of the term hereby granted to be paid in equal
quarterly payments in advance of the first day of February, first day of May,
first day of August and the first day of October in each year the first payment
to be made on the execution hereof.
2.1. The revised rent referred to in the within Lease in respect of any of the
periods therein mentioned may be agreed at any time between the Landlord
and the Tenant or (in the absence of agreement) be determined not earlier
than the date of commencement of such period ("the Review Date") by an
Independent Valuer such Independent Valuer to be nominated (in the absence
of agreement between the parties) upon the application (made not more than
three calendar months before or any time after the Review Date) or either
the Landlord or the Tenant by the Chairman (or other officer endowed with
the functions of such Chairman) of:-
(i) The Society of Chartered Surveyors in the Republic of Ireland or
(ii) Such body of Professional Surveyors or Valuers as (in the event of
such Society not then being in existence) shall for the time being
have undertaken in the Republic of Ireland the functions (in the
activity of property valuation) currently perform by such Society or
(should the Chairman or other officer as aforesaid be unwilling or
unable to make the nomination) by the next senior officer of such
Society or Body who is willing and able to make the nomination and (in
the event of there being no such officer willing and able
5
to make the nomination or should such Body not be in existence or not
be readily identifiable) by the President (or other Officer endowed
with the functions of such President) of the Incorporated Law Society
of Ireland or (in the event of his being unwilling or unable to make
the nomination) by the next senior officer of the said Society who is
willing and able to make the nomination.
And the revised rent so to be determined by the Independent Valuer shall be such
as in his opinion represents at the Review Date the full open market yearly rent
for the demised premises let as a whole without fine or premium:
(i) On the basis of a letting with vacant possession thereof by a willing
Lessor to a willing Lessee for a term equal to that granted by the
within Lease and subject to the provisions therein set forth including
the provisions for the review of the rent payable hereunder (other
than as to the amount of the initial rent hereby reserved).
(ii) On the assumption that at and until the Review Date all the covenants
and conditions contained in the within Lease shall have been fully
performed and observed, that the Landlord shall not be entitled to
unreasonably withhold its consent to the assignment of the entire of
the demised premises and to the change of the use thereof (having
regard to the provisions of clauses 3.20 and 3.23 hereof) and that in
the event of the demised premises having been destroyed or damaged the
same shall then have been fully rebuilt, repaired and reinstated (as
the case may be) and
(iii) Having regard to the Schedule of works and fittings forming part
of the premises specified in pages 1 to 7 of the schedule of works
attached to this Lease dated 5/th/ February 2001 (but excluding so
much
6
thereof as is specified in pages 8 - 9 thereof).
(iv) Having regard to other open market rental values current at the
Review Date in so far as the Independent Valuer may deem the same
to be pertinent to the matters under consideration by him.
BUT disregarding any effect on letting value of:-
(a) The fact that the Tenant has been in occupation of the demised premises.
(b) The goodwill which shall have attached to the demised premises by reason of
the business carried in thereat.
(c) Any works executed by or at the expense of the Tenant or any predecessor in
title of the Tenant (or any party lawfully occupying the demised premises
or any part thereof under the Lease or any such predecessor) in or to or in
respect of the demised premises otherwise then in pursuance of an
obligation on foot of the within Lease or any other agreement between the
parties hereto, and in particular those works specified in pages 8 to 9 of
the schedule of works attached to this Lease dated 5th February 2001.
2.2. An Independent Valuer in relation to any matter so to be determined by him
shall:-
(i) Give notice of his nomination to the Landlord and the Tenant.
(ii) Be entitled to enter the demised premises as often as he may
reasonably require for the purpose of inspection and examination.
(iii) At his sole discretion, be entitled to afford to each of the
parties concerned a reasonable opportunity of stating in writing
within four weeks from the date of his appointment, reasons in
support of such
7
contentions as each party may wish to make relative to the matter or
matters under consideration.
(iv) Act as an expert and not as an arbitrator and so that his
determination or determination shall be final and conclusive between
the parties.
(v) Be empowered to fix his fees in relation to any such determination and
matters incidental thereto which said fees and any reasonable expenses
incurred by the Independent Valuer in or about his determination shall
be shared equally between the Landlord and the Tenant.
(vi) Give notice in writing of his determination to the Landlord and the
Tenant within such time as may be stipulated by the terms of his
appointment or in the event of there being no such stipulation within
two calendar months of the acceptance by him of the nomination to act
in the matter.
2.3. Either party shall be at liberty to pay the entire of the fees and expenses
as aforesaid of the Independent Valuer in which event the party so paying
shall be entitled to be reimbursed by and to recover from the other on
demand the proportion so paid on behalf of such other.
2.4. If an Independent Valuer in relation to any matter for determination by him
shall fail to conclude such determination and give notice thereof within
such time as may be relevant or if he shall relinquish his appointment or
die or if it shall become apparent that for any reason he shall be unable
or shall have become unfit or unsuited (whether because of bias or
otherwise) to complete the duties of his nomination a substitute may be
nominated in his place and in relation to any such nomination the
8
procedures hereinbefore set forth shall be deemed to apply as through the
substitution where a nomination de novo which said procedures may be
repeated as many times as necessary.
2.5. The amount of the full open market yearly rent determined as aforesaid
shall be binding on the parties for the purpose of this Clause and, subject
as hereinafter appears, the amount of the revised rent to be paid by the
Tenant for the period of five years immediately following the Review Date
shall be the higher of:-
(a) the full open market yearly rent ascertained as aforesaid,
(b) the rent payable by the Tenant for the period of five years
immediately preceding the Review Date.
2.6. If the revised rent in respect of any period ("The Current Period") shall
not have been ascertained on or before the Review Date referrable thereto
rent shall continue to be payable by the Tenant up to the gale day next
succeeding the ascertainment of the revised rent at the rate payable during
the last preceding period AND on such gale day the Tenant shall pay to the
Landlord the appropriate instalment of the revised rent together with any
shortfall between:-
(i) rent actually paid for any part of the Current Period and
(ii) rent at the rate of the revised rent attributable to the interval
between the Review Date and such gale day and together with interest
on the said shortfall such interest to be computed on a day to day
basis and to be assessed at such a rate as shall be equivalent to the
yield (at issue and before deduction of tax if any) on the security of
the Government last issued before the commencement of the current
Period
9
(allowance having been made in the calculation of the said yield for
any profit or loss which may occur on the redemption of the security).
For the purpose of this paragraph the revised rent shall be deemed to
have been ascertained on the date when the same shall have been agreed
between the parties or as the case may be on the date of the
notification to the Tenant of the determination of the Independent
Valuer.
2.7. If there should be in force at the commencement or during the currency of
any particular relevant period any Statute or Order (directly or
indirectly) prohibiting or restricting an increase of rent in respect of
the demised premises the provisions this clause and of the within Lease may
nevertheless be invoked or re-invoked to determine the rent which would be
for the said prohibition or restriction be payable during such relevant
period but (if appropriate) the further implementation thereof shall be
suspended in effect for such period as may be required by law.
2.8. When and so often as the revised rent shall have been ascertained pursuant
to the provisions herein set forth memoranda thereof shall be signed by or
on behalf of the Landlord and the Tenant and shall be annexed to the within
Lease and its counterpart and the parties shall bear their own costs in
relation to the preparation and completion of such memoranda and the Stamp
Duty thereon shall be borne by the Tenant.
TENANT'S COVENANTS
3. THE Tenant to the Intent that the obligations may continue throughout the
term granted hereby covenants with the
10
Landlord as follows:-
PAY RENT
3.1.1. To pay the rent or increased rent hereby reserved and any other sums
payable hereunder by bankers order on the days and in the manner herein
prescribed without any deductions.
INSURANCE PREMIUMS
3.1.2. To pay to the Landlord from time to time on demand without any
deduction or abatement:-
3.1.2.1. The full costs incurred by the Landlord in effecting and
maintaining insurance of the demised premises pursuant to
covenant 5.1. hereunder.
INTEREST ON ARREARS
3.1.3. If the Tenant shall fail to pay the rent hereinbefore reserved or any
other sum reserved or made payable hereunder within fourteen days of the
day and in the manner herein prescribed for the payment of same such unpaid
rent or sum shall bear interest from the day or days on which the same
shall become due to the date of actual payment (after as well as before any
judgement) at a rate which shall exceed the three month Dublin Inter-Bank
Rate by the three per cent, or if there should be no such rate the
corresponding or nearest appropriate rate thereto at the date upon which
the said sums fall due or become payable or in there shall be no such rate
twelve per centum.
PAY OUTGOINGS
11
3.2. To pay and discharge all rates and taxes duties charges assessments
impositions and outgoings whatsoever whether parliamentary parochial local
or any other description which are now or may at any time hereafter be
charged taxed assessed levied or imposed upon or payable in respect of the
demised premises or on the owner or occupier in respect thereof
notwithstanding any contract to the contrary and exception all landlord's
Capital Taxes and to indemnify and keep indemnified the Landlord against or
arising out of same or any expense (legal or otherwise) in connection
therewith.
PAY FOR SERVICES
3.3. To pay all sums due for electricity or gas or water (or other fuel or
service used) consumed by it on the demised premises.
COMPLY WITH ENACTMENTS
3.4.1. At all times during the said term to observe and comply in all respects
with the provisions and requirements of any and every enactment for the
time being in force or any orders or regulations thereunder for the time
being in force and to do and execute or cause to be done and executed all
such works as under or by virtue of any such enactment or any orders or
regulations thereunder for the time being in force are or shall be properly
directed or necessary to be done or executed upon or in respect of the
demised premises or any part thereof whether by the owner landlord lessee
tenant or occupier and at all times to keep the Landlord indemnified
against all claims demands and liability in respect thereof and without
derogating from the generality of the foregoing to comply at the cost of
the Tenant with the requirements of any local or other statutory authority
and the order or orders of any Court of competent jurisdiction.
12
FIRE REQUIREMENTS
3.4.2. At all times during the said term to comply with all the recommendations
or requirements of the appropriate Authority whether notified or directed
to the Landlord or the Tenant in relation to fire precautions and to
indemnify the Landlord against any costs or expenses in complying with any
such requirement or recommendation and not to obstruct the access to or
means of working any apparatus and appliances for the time being installed
in the demised premises or in the Office Block.
NUISANCE
3.5. To pay the Landlord all costs charges and expenses which may be incurred by
the Landlord in abating a nuisance caused by the Tenant in respect of the
demised premises and to execute all such works as may be necessary for
abating such a nuisance in obedience to a notice lawfully served by a local
or public authority or pursuant to any Court order.
NOT TO DAMAGE OR INTERFERE
3.6. Not to damage or interfere with the proper working of the machinery,
utilities or conduits in the demised premises.
REPAIR
3.7.1. To keep clean and tidy and to repair and to put and keep in good order
repair and condition from time to time and at all times during the term
hereby created the exterior and the interior of the demised premises and
every part thereof, and any additions alterations and extensions thereto
and every part thereof and without derogating from the generality of the
foregoing the floors ceilings roof and structural walls and all surfaces of
any structural
13
parts of the demised premises and the doors, locks, glass and other
windows, fixtures, fittings, fastenings, conduits and utilities (damage by
any of the Insured Risks as hereinafter defined in Clause 4.1. hereof
excepted if and so long only the policy or policies of insurance shall not
have been vitiated or payment of the policy monies withheld or refused in
whole or in part by reason of any act neglect or default of the Tenant or
the servants agents licences or invitees of the Tenant).
3.7.2. To properly clean the inside and outside of the windows of and all glass
doors in the demised premises at least once every two months throughout the
term of this Lease.
PAINT INSIDE & OUTSIDE
3.8. In the year 2006 if the tenancy hereby created should still exist and
thereafter in every fifth year and (if necessary) in the last year of the
said term (whether determined by effluxion of time or otherwise) to prepare
and paint in a proper and workmanlike manner all the outside and inside
wood metal and other inside works of the demised premises usually or
requiring to be painted with two coats at least of good oil paint or good
synthetic paint AND ALSO with such painting to white-wash, colour-wash,
distemper, grain, varnish, french polish or wax polish paper or otherwise
decorate in a proper and workmanlike manner and with good quality materials
all such parts of the demised premises as have been or ought properly to be
so treated AND as often as may be necessary to clean and treat in a
suitable manner for its maintenance in good condition all the wood metal
work and stone work (whether polished or not) not required to be painted or
french polished or distempered and to clean all tiles glazed bricks
aluminium windows and doors and similar washable surfaces.
14
PERMIT ENTRY
3.9. To permit the Landlord and any Superior Landlords their Surveyors and
agents with or without workmen and others at all reasonable times after due
notice in writing (except in case of emergency when no notice shall be
required) to enter into and upon the demised premises and every part
thereof and to take a plan of and examine the state of repair and condition
of the same and to take inventories of the Landlord's fixtures to be
yielded up at the expiration of the said term and within two calendar
months (or sooner if requisite) after notice in writing to the Tenant of
all defects and wants of reparation found on such examination shall have
been given to repair and make good the same according to such notice and
the covenants in that behalf herein contained and in case the Tenant shall
make default in so doing it shall be lawful for the workmen or others to be
employed by the Landlord to enter upon the demised premises (but without
prejudice to the proviso for re-entry hereinafter contained) and repair and
restore the same and all expenses incurred thereby shall on demand be paid
by the Tenant to the Landlord and if not paid shall be recoverable by the
Landlord as liquidated damages.
PERMIT WORKS
3.10. To permit he Landlord and any Superior Landlords and their agents and
workmen and other person authorised by the Landlord or Superior Landlord
with all necessary appliances at all times after due notice (except in
cases of emergency when no notice shall be required) to enter upon the
demised premises or any part thereof for the purposes specified herein.
NOTIFICATION OF DAMAGE
15
3.11. To notify the Landlord immediately of any damage or injury caused to the
demised premises by any of the Insured Risks as hereinafter defined
immediately as soon as the same comes to the Tenants notice.
NOT TO AVOID INSURANCE
3.12. Not to do or omit or suffer to be done or omitted any act matter or thing
whatsoever the doing or omission of which would make void or voidable the
insurance of the demised premises or of the Landlord's fixtures and
fittings therein or of any adjoining or neighbouring premises or whereby
the rate of premium thereupon may be increased and forthwith to repay on
demand to the Landlord all sums paid by way of increased premiums and all
expenses incurred by the Landlord or the said owner in or about the renewal
of such policy or policies rendered necessary by a breach of this covenant
all of which payments shall be added to the amount payable by the Tenant in
respect of insurance premium or premiums as if the same had been reserved
as rent hereunder. The Tenant shall on request be furnished with copies of
all insurance policies effected by the Landlord in relation to the demised
premises together with full details of all conditions to which same may be
subject.
NOT TO OVERLOAD STRUCTURE
3.13. Not to or permit or bring in or upon the demised premises anything which
may throw on the demised premises or on any adjoining premises any weight
or strain in excess of that which such premises are capable of bearing with
due margin for safety and in particular not to overload the floors or the
electrical installations or the other services of in or to the demised
premises and not suspend any excessive weight from the ceilings or walls
stanchions or the structure thereof. The Tenant shall seek
16
professional advice at the Tenant's own expenses to ensure that there shall
not be an infringement of this covenant.
NO BUILDINGS
3.14. Not to erect or suffer to be erected any buildings or erections on the
demised premises save as hereinafter provided and not without the previous
consent in writing of the Landlord (such consent not be unreasonably
withheld) to cut alter maim or injure or permit to be cut altered maimed or
injured any of the ceilings roofs walls floors or timbers of the demised
premises or alter or change or permit to be altered or changed the plan
elevation or architectural decorations thereof or alter any of the
Landlord's fixtures fittings and appliances in and about the demised
premises or make or permit to be made any external alterations or additions
whatsoever.
REMOVE UNAUTHORISED STRUCTURES
3.15. On the request in writing of the Landlord or its agent forthwith to pull
down and remove any building erection alteration or addition erected placed
or made in breach of any of the foregoing covenants and upon such request
in writing as herein provided forthwith to amend restore replace or rebuild
the demised premises according to the original plans and elevations
thereof.
NUISANCE
3.16. Not to do or permit nor suffer to be done in or upon the demised premises
or any part thereof anything which shall or may be or become or cause a
nuisance damage or annoyance inconvenience disturbance injury or danger to
the Landlord or any Superior Landlord or any premises in the neighbourhood
and not to permit suffer or allow any odours vapours steam water vibrations
noises or undesirable effects to emanate from the demised premises or from
any
17
equipment or installation therein and to keep the Landlord fully and
effectually indemnified against all actions proceedings damages costs
expenses claims and demands whatsoever arising out of or in consequence of
any breach or non-observance of this covenant.
OBSTRUCTION OF SEWERS
3.17. Not to allow to pass into the sewers drains or watercourses serving the
demised premises any noxious or deleterious effluent or other substance
which will cause an obstruction or injure the said sewers drains or
watercourses and in the event of any such obstruction or injury to make
good as soon as practicable all such damage and any damage thereby caused
to the demised premises to the reasonable satisfaction of the Landlord or
the Landlord's Surveyor.
NO SIGNS
3.18. Not to affix or exhibit or permit to be affixed or exhibited to or upon
any part of the exterior or interior so as to be visible from the exterior
of the demised premises or on the external walls windows rails or fences
thereof any sign placard poster signboard or other advertisement television
aerial or thing except such as subject to Planning Permission (if
applicable) shall be approved in writing by the Landlord or by the
Landlord's Surveyor, such approval not to be unreasonably withheld.
INFLAMMABLE GOODS AND NOISY MACHINERY
3.19. Not to have store or keep upon the demised premises or any part thereof
any substance of an explosive or of an especially inflammable or dangerous
nature or such as might
18
increase the risk of fire or explosion or which might attack or in any way
injure by percolation corrosion or otherwise the demised premises or the
keeping or use whereof may contravene any statute or local regulation or
bye-law and not to house or operate or permit to be housed or operated in
or upon the demised premises or any part thereof any engine or machinery of
any kind other than the usual office machines and which are not likely to
cause any undue vibration or be or become a nuisance annoyance or
disturbance.
USER
3.20. Not to use or permit the demised premises or any part thereof to be used
for any purpose other than offices and the lessees business as
manufacturers of computer components AND for no other purposes save with
the Landlord's written consent which consent shall not be unreasonably
refused.
3.20.1. Not at any time to use the demised premises or any part thereof or allow
the same to be used for any entertainment or for any dangerous noisy
noxious or offensive trade business manufacture or occupation whatsoever or
for a immoral or alleged purpose or permit any sale by auction to be held
on the demised premises.
GARBAGE
3.21. To make use of a covered bin or bins for removal of refuse and to comply
with the Landlord's regulations from time to time in regard to the storage
and disposal of refuse.
CONVEYANCING ACT NOTICES
19
3.22. To pay to the Landlord all costs charges and expenses (including legal
costs and surveyors fees) which may be incurred by it incidental to the
preparation and service of any notices under Clause 3.9. hereof and any
notices and proceedings under Section 14 of the Conveyancing Act 1881
notwithstanding that forfeiture is avoided otherwise than by relief granted
by the Court.
NOT TO ASSIGN UNDERLET OR PART WITH POSSESSION
3.23. Not to assign transfer or underlet or share or part with the possession or
occupation of the demised premises or any part thereof or suffer any person
to occupy the demised premises or any part thereof as a Licensee BUT SO
THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably
withhold its consent to the assignment or underletting of the entire of the
demised premises or a complete floor to an assignee or underlessee of good
financial standing and otherwise subject to the following provisions or
such as them as may be appropriate, that is to say:-
3.23.1. The Tenant shall prior to any such assignment or underlease apply to the
Landlord and give all reasonable information concerning the proposed
assignee or underlessee as the Landlord may require.
3.23.2. The Landlord's consent to any such assignment or underletting shall be
given in writing and the Tenant shall pay the reasonable costs including
the Landlord's legal costs in connection with such consent.
3.23.3. In the case of an assignment to a body corporate of unproven financial
standing it shall be deemed reasonable for the Landlord to require that two
persons 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 as sureties that
20
such company will pay the said rents and perform and observe the said
covenants and indemnify and save harmless the Landlord against all loss
damages costs and expenses arising by reason of any default by the company
and such covenant shall further provide in usual form that any neglect or
forbearance of the Landlord shall not release or exonerate the sureties and
shall further provide for the sureties to accept a new lease of the demised
premises upon disclaimer of these presents by the company or on its behalf
if so required by the Landlord within three months of such disclaimer such
new lease to be for the residue then unexpired of the term hereby granted
and at the rents payable and subject to the same tenant's covenants and to
the same provisos and conditions as those in force immediately before such
disclaimer and such guarantee to be granted at the cost of the sureties.
3.23.4. In the case of an underlease the same shall be of the entire of the
demised premises at the then current market rent without any deduction
whatsoever and without a fine or premium or the rent payable hereunder at
the time of the granting of such underlease (whichever is the higher) and
the underlessee 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 rent 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:-
3.23.4.1. be for a period of less than five years or alternatively the
underlessee and tenant shall be required to enter into an renunciation
of rights of renewal under the provisions of the Landlord and Tenant
Amendment Act, 1994 as required by the Landlord.
3.23.4.2. an unqualified covenant on the part of the underlessee
21
not to underlease or part with or share the possession of the whole or
part only of the premises thereby demised.
3.23.4.3. a covenant on the part of the underlessee not to assign the premises
thereby demised without obtaining the previous consent in writing of
the Superior Landlords under the Landlord's Lease (if any) and of the
Landlord.
3.23.4.4 where an underlease has been agreed to by the Landlord and the
underlessee and tenant have entered into an agreed renunciation of
rights to a further tenancy under the provisions of the Landlord and
Tenant (Amendment) Act, 1994 then the underlease shall contain a
covenant, condition or proviso under which the rent reserved by the
underlease shall be reviewed at least every five years and if every
five years the Review Date as therein defined shall be the day which
is six months after the Review Dates in this Lease (notwithstanding
that this provision may necessitate a review before the expiration of
five years from the commencement of the underlease) but otherwise in
the same terms as provided in this Lease.
3.23.4.5. A covenant, condition or proviso under which the rent from time to
time payable under such underlease shall not be less than the rent
from time to time payable hereunder save for the six monthly period
between the Review Date of this the underLease as hereinbefore
provided.
3.23.4.6. Covenants and conditions in the same terms as nearly as circumstances
admit as those contained in this lease.
3.23.5. Within fourteen days of every such assignment or underlease the Tenant
shall give notice thereof in writing
22
with particulars to the Landlord's Solicitors or Agent and shall
furnish them with a true copy of such instrument and shall pay to the
Landlord's Solicitors their reasonable legal costs and other expenses
in connection with such an assignment or underlease.
NO OBSTRUCTION
3.24. Not to block up obstruct or enlarge any doorway passage window light
or other easement or make any new window or other opening in the demised
premises or in any manner obscure any grating window or opening therein
giving light to or otherwise intended for the benefit of the demised
premises or other premises and not to give permission for any new window
light opening doorway path passage drain or other encroachment or easement
to be made into or against or upon the demised premises which might be or
grow to the damage annoyance or inconvenience of the Landlord AND in case
any such window light opening doorway path passage drain or other
encroachment or easement shall be made to give immediate notice thereof to
the Landlord immediately the same shall come to the notice of the Tenant
and at the request and cost of the Landlord to adopt such means as may be
reasonably required or deemed proper for preventing any such encroachment
or the acquisition of any such easement.
PLANNING ACTS
3.25. In relation to the Planning Acts (by which expression it is intended
herein to designate the Local Government (Planning & Development) Acts 1963
to 1983 and any statutory modification or re-enactment thereof for the time
being in force and any Regulations or Orders made thereunder.
23
3.25.1. Not to do or omit or permit to be done or omitted anything on or in
connection with the demised premises the doing or omission of which shall
be a contravention of the Planning Acts or of any notices orders licences
permissions and conditions (if any) served made granted or imposed
thereunder or under any enactment repealed thereby and to indemnify (as
well after the expiration of the said term by affluxion of time or
otherwise as during its continuance) and keep indemnified the Landlord
against all actions proceedings damages penalties costs charges claims and
demands in respect of such acts and omissions or any of them and against
the costs of any application for planning permission and the works and
things done in pursuance thereof.
3.25.2. In the event of the Landlord giving written consent to any of the
matters in respect of which the Landlord's consent shall be required under
the provisions of this Lease or otherwise and in the event of permission
from any Planning Authority under the Planning Acts being necessary for any
addition alteration or change in or to the demised premises or for the
change of user thereof to apply at the cost of the Tenant to the Local and
Planning Authorities for all consents and permissions which may be required
in connection therewith and to give notice to the Landlord of the granting
or refusal (as the case may be) of all such consents and permissions
forthwith on receipt thereof.
3.25.3. To give notice forthwith to the Landlord of any notice order or
proposal for a notice or order served on the Tenant under the Planning and
Development Acts and if so required by the Landlord to produce the same and
at the request and cost of the Tenant to make or join in making such
objections or representations in respect of any proposal as the Landlord
may require.
3.25.4. To comply at its own cost with any notice or order served on the
Tenant under the provisions of the Planning
24
Acts.
3.25.5. If and when called upon so to do to produce to the Landlord or its
Surveyor all such plans documents and other evidence as the Landlord may
reasonably require in order to satisfy itself that the provisions of this
sub-clause have been complied with in all respects.
INSURE GLASS
3.26. To insure and keep insured the glass in the demised premises in the
names of the Landlord and Tenant in the full reinstatement cost thereof and
if required to produce the policy and the receipt for the latest premium.
TO GIVE NOTICE
3.27. Within seven days of the receipt of notice of the same to give full
particulars to the Landlord of any permission notice order or proposal for
a notice or order made given or issued to the Tenant by any Government
Department or Local or Public Authority under or by virtue of any
statutorypower and if so required by the Landlord to produce such
permission notice or order or proposal for a notice or order to the
Landlord and also without delay to take all necessary steps to comply with
any such notice or order and also at the request of the Landlord to make or
join with the Landlord in making objections or making representations
against or in respect of any such notice or order or proposal as aforesaid
as the Landlord shall deem expedient.
REVERSIONARY INTEREST
3.28. At all convenient hours in the day time on twenty-four hours' notice
being given to permit all prospective purchasers or dealers in the
reversionary interests of the
25
Landlord by order in writing of the Landlord or its agents to view the
demised premises without interruption but so that no undue interference is
caused to the business of the Tenant.
RE-LETTING SIGN
3.29. To permit the Landlord and its agents at any time within six calendar
months next before the expiration or sooner determination of the said term
to enter upon the demised premises and to fix and retain without
interference upon any suitable part or parts thereof (but not in any
position likely to interfere with the user of the demised premises) a
notice board for re-letting or disposing of the same and not to remove or
obscure the same and to permit all persons by order in writing of the
Landlord or its Agents to view the demised premises at all reasonable hours
in the daytime without interruption.
LOSS BY LESSOR
3.30. To make good all loss sustained by the Landlord in consequence of any
breach by the Tenant or any underlessee of the Tenant of any covenant or
condition herein contained.
INDEMNITY
3.31. To take out and maintain at all times during the term hereby granted a
Public Liability Policy in respect of and covering the liability of the
Landlord and the Tenant in respect of the demised premises in an amount of
not less than IR(pound)10,000,000 be adjusted from time to time as the
Landlord deems reasonably necessary and to indemnify and keep indemnified
the Landlord against all and any expenses costs claims and demands damages
and other liabilities whatsoever in respect of the injury or death of any
person or damage to any property howsoever without derogating from
26
the generality of the foregoing arising directly or indirectly out of:-
3.31.1. the state of repair or condition of the demised premises;
3.31.2. the existence of any alterations thereto or to the state of repair or
condition of such alteration;
3.31.3. the user of the demised premises;
3.31.4. any work carried out or in the course of being carried out to the
demised premises by the Tenant its servants or agents sub-lessees or
sub-tenants;
3.31.5. anything now or hereafter attached to or projecting therefrom or any
other cause arising out of the demised premises.
TO YIELD UP
3.32. At the expiration or sooner determination of the said term quietly to
yield up the demised premises together with all the Landlord's fixtures and
all other fixtures and fastenings that now are or which during the said
term shall be affixed or fastened thereto (except tenant's or trade
fixtures (save such partitioning, and wiring as are in the reasonable
opinion of the Landlord for the general benefit to the demised premises) as
the Tenant may decide to leave in situ) in such good and substantial repair
and condition as shall be in accordance with the covenants on the part of
the Tenant herein contained and in case any of the said fixtures and
fittings shall be missing broken damaged or destroyed to forthwith replace
them with others of a similar kind and of equal value and to make good any
damage caused to the demised premises by the effects (damage by any of the
Insured Risks as hereinafter defined in Clause 3.1. excepted if and so long
only as the policy or policies
27
or insurance shall not have been vitiated or payment of the policy monies
withheld or refused in whole or in part by reason of any act neglect or
default of the Tenant or the servants agents licensees or invitees of the
Tenant).
TO OBSERVE REGULATIONS
3.33. To perform and observe and be bound to use its best endeavours to
ensure that any undertenant of the Tenant and its and their respective
servants agents invitees and licensees perform and observe all such
reasonable regulations as may from time to time be made by the Landlord
hereunder in relation to use of the Common Parts.
TO PAY STAMP DUTY AND V.A.T.
3.34. To pay to the Landlord the stamp duty on this Lease and the counter
part thereof and to pay all Value Added Tax (if any) on the delivery hereof
and arising hereunder and to indemnify the Landlord against the same.
CAR PARK SPACES
3.35.1 Not to assign, share, alienate or otherwise deal in any manner
whatsoever with the Landlord's interest in the car park spaces granted to
the Tenant by this Lease ("the car park spaces") to any person or body who
is not the Tenant unless such transaction is in conjunction with an
assignment of the interest in the Tenant in the Demised Premises.
3.35.2 Not to breach any covenant or condition or any reasonable rule,
regulation or notice concerning the use of the car park spaces imposed by
the Landlord.
3.35.3 Not to obstruct, interfere with or in any manner whatsoever place any
object, structure or building in the car park space or any part thereof or
in the entranceway or
28
passageways thereto and therefrom.
3.35.4 Immediately surrender assign and yield up possession of the car park
spaces or any of them and all the interest, right or entitlement of the
Tenant therein to the Landlord if so requested in writing by the Landlord
PROVIDED ALWAYS an alternative designated car parking space is made
available to the Tenant in respect of any space so surrendered at any place
provided by the Landlord.
Without prejudice to the generality of the foregoing if any
alternative car-parking space is located outside a radius of one
hundred yards of the Demised Premises then the rent herein payable
shall be adjusted forthwith to reflect the difference (if any) between
the open market rental value of such space held under the terms of
this Lease and the original space for which it was substituted and in
the event of a dispute between the Landlord and the Tenant as to the
amount of such adjustment the matter shall be referred to the
Independent Valuer pursuant to the terms of Clause 2 of this Lease
PROVIDED THAT in no event shall the rent herein be increased pursuant
to this Clause.
TO PAY I.D.A. SERVICE CHARGE
3.36 The property is subject to a service charge levied by the I.D.A. on
the premises. The Tenant shall deal directly with the I.D.A. regarding
notification and payment of the said service charge and shall pay the
I.D.A. Service Charge levied on the demised premises to the I.D.A.
within fourteen days of receiving notification of same from the
I.D.A., and agrees to indemnify the Landlord in respect of any
liability for the said service charge.
29
4. THE LANDLORD HEREBY COVENANTS WITH THE TENANT:-
INSURANCE
4.1. Subject to the Landlord being able to effect insurance against all or any
one or more of the risks hereinafter specified and subject to reimbursement
of the appropriate insurance premium as provided by Clause 3.1.2. hereof to
insure in the name of the Landlord the demised premises and all Landlord's
fixtures and fittings therein or thereon and to keep the same insured in
the full reinstatement costs (to be determined from time to time by the
Landlord or the Landlord's Surveyor) and including an inflationary factor
(to be reasonably determined from time to time by the Landlord) against
damage by fire, explosion, lightning, impact, earthquake, aircraft, floods,
storm and tempest, riot, civil commotion and malicious damage or bursting
or overflowing of water tanks, apparatus or pipes and including demolition
and site clearance expenses, architects, quantity surveyors and other fees
and taxes in relation to the reinstatement of the demised premises and
value added tax thereon, three years' loss of rent and all stamp duties
exigible on any building or like contract as may be entered into relative
to the reconstruction reinstatement or repair of the demised premises or
any part thereof resulting from the destruction loss or damage thereof or
thereto from any of the perils aforesaid and public liability and property
owners liability and against such other risks as the Landlord may from time
to time consider prudent and desirable (all such perils and risks for the
time being so covered by insurance as herein called "the Insured Risks")
and such risks may be covered by a Policy or Policies of Insurance as the
Landlord may consider appropriate.
RE-INSTATE
30
4.2. In case the demised premises or any part thereof shall be destroyed or
damaged by fire or from any of the Insured Risks then (subject to the
Landlord obtaining Planning Permission and all other necessary permits
licences and approvals) and as often as shall happen to lay out all monies
received in respect of such insurance as aforesaid as soon as practicable
in or upon rebuilding repairing or reinstating the demised premises in a
good and substantial manner unless the relevant policy shall have been
vitiated or rendered less than fully effective by any act neglect default
or omission of the part of the Tenant.
PROVIDED ALWAYS:-
4.2.1. that in the event of the Landlord being unable to reinstate the
demised premises substantially in accordance with its existing plan and
elevation due to refusal of planning or other approvals, consents or
licences the Tenant agrees to surrender this Lease when called upon by the
Landlord so to do.
QUIET ENJOYMENT
4.3. That the Tenant paying the rents hereby reserved and observing and
performing the covenants and agreements on the part of the Tenant
hereinbefore contained shall and may peaceably hold and enjoy the demised
premises during the said term without any interruption by the Landlord or
any other person or persons lawfully claiming under or in trust for it.
5. PROVIDED ALWAYS and it is hereby agreed and declared as follows:
FORFEITURE
31
5.1.1. the said rent or any interest on arrears of rent or any sum payable
hereunder or any part thereof shall be unpaid for fourteen days after any
of the days hereinbefore appointed for payment whether the same shall have
been lawfully demanded or not; or
5.1.2. any covenants on the Tenant's part herein contained shall not be
observed or performed; or
5.1.3. the Tenant being an individual or a firm shall become bankrupt or
compound or arrange with his or its creditors or being a company shall go
its liquidation either compulsory or voluntary except for the purpose of
reconstruction or amalgamation; or
5.1.4. the Tenant being a company shall permit or suffer to be appointed a
receiver or examiner over any part of its assets.
THEN and in any of the said cases and at any time thereafter it shall be lawful
for the Landlord or any person or persons authorised by the Landlord to enter
upon the demised premises or any part thereof in the name of the whole and to
repossess the same and enjoy the same as if this Lease had not been executed but
without prejudice to any right of action or remedy on either party in respect of
any antecedent breach of any of the covenants by the other herein contained.
SUSPENSION OF RENT
5.2. If during the said term the demised premises or any part thereof shall be
destroyed or damaged by any of the Insured Risks so as to be unfit for
occupation or use and the policy or policies of insurance effected by the
Landlord shall not have been vitiated or payment of the policy monies
withheld or refused in whole or in part in consequence of any act neglect
or default of the Tenant its servants agents or licensees the rent hereby
reserved and
32
the obligations of the Tenant as to the maintenance and repair of the
demised premises or a fair proportion thereof according to the nature and
extent of the damage sustained shall be suspended until the demised
premises shall have again been rendered fit for occupation or use by the
Tenant or become accessible again or for three years whichever is the
shorter and any dispute concerning the provision of this Clause shall be
determined by a single arbitrator in accordance with the provisions of the
Arbitration Act 1954 and 1980 or any statutory enactment in that behalf for
the time being in force.
SURRENDER
5.3. In case the demised premises or any part thereof shall be destroyed or
become ruinous and uninhabitable or incapable of beneficial occupation or
enjoyment by or from any of the Insured Risks during the term hereby
granted the Tenant hereby absolutely waives and abandons its rights (if
any) to surrender this Lease under the provisions of Section 40 of the
Landlord & Tenant Law Amended Act, Ireland 1960 or otherwise.
WARRANTY
5.4. Nothing in this Lease contained shall be deemed to constitute any warranty
by the Landlord that the demised premises or any part thereof are
authorised under the Planning Acts or otherwise for use for any specific
purpose.
NO WAIVER
5.5. The demand for and the acceptance of rent by the Landlord or its Agents
shall not constitute and shall not be construed to mean a waiver of any of
the covenants on the part of the Tenant herein contained and the penalties
attached to the non-performance thereof.
33
5.6. The Landlord shall have the right of giving reasonable notice in writing to
the Tenant to enter upon the demised premises during the term hereof with
workmen and machinery of the purposes of carrying out improvements to the
demised premises such improvements to be taken into account on rent review,
but causing as little inconvenience as possible to the Tenants business.
CONSTRUCTION
6. WHERE the Tenant consists of two or more persons all the respective
covenants by the Tenant shall be deemed to be by such persons jointly and
severally and reference to the masculine gender shall include reference to
the female gender and reference to the singular shall include reference to
the plural and references to a person shall include corporation and visa
versa respectively.
7. Each covenant by the Tenant not to do any act or thing shall be deemed to
include a covenant not to permit or suffer that act or thing to be done.
8. "Month" shall mean calendar month.
9. Reference to any Act of Parliament or of the Oireachtas shall include any
Act replaced by it or any Act replacing or amending it and any Order
regulation instrument direction scheme or permission made under it or
deriving validity from it.
NOTICES
10. IN addition to any other prescribed mode of service any notices requiring
to be served on the Tenant hereunder shall be validly served if left
addressed or sent by prepaid ordinary post to the Tenant (or if there shall
be
34
more than one of them of any one or more of them) at the demised premises
or at the last known address or addresses of the Tenant or Tenants 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.
11. Where the Landlord has the right or obligation to serve a notice demand or
certificate or to enter the demised premises for any purpose such right or
obligation may be exercised by a surveyor or agent authorised to act on the
Landlord.
12. THE paragraph headings shall not affect in any way the construction of this
Lease.
IT IS HEREBY CERTIFIED by the parties hereto that the premises hereby demised
are situated in the City of Dublin.
IN WITNESS whereof the parties hereto have hereunto executed these presents the
day and year first herein WRITTEN.
35
SCHEDULE
--------
First Part
----------
The Demised Premises
--------------------
ALL THAT the hereditaments and premises known as Trintech Building Phase II,
South County Business Park being part of the land comprised in an Indenture of
Lease dated the 25th day of November 1998 and made between the Industrial
Development Authority of the one part and the Landlord of the other part, as the
same is more particularly delineated on the map or plan annexed hereto numbered
1 and thereon surrounded by a red verge line TOGETHER WITH:-
(a) All Landlord's fixtures and fittings in and about the demised premises.
(b) The use of all conduits upon, through or under such adjacent premises
insofar as such rights may be necessary for the enjoyment of the demised
premises and in common with the Landlord and all other person authorised by
the Landlord or otherwise entitled thereto.
(c) Works carried out by the Landlord on the demised premises as outlined on
the Schedule dated 5th February 20001 attached hereto.
Second Part
-----------
Easements and Rights Granted
----------------------------
1. Subject always to the provisions hereof and in common with the Landlord and
all other persons authorised by the Landlord or otherwise entitled thereto
(and subject to temporary interruption for repair, alteration or
replacement) the free and uninterrupted use for the passage of water,
drainage, gas, electricity, telephone and other services to or from the
demised premises through all
36
conduits which are now or may at any time during the period of 21 years
from the date hereof be in, under or over the retained premises and serving
the demised premises;
2. Right of way on foot only for the Tenant, its employees, customers,
licensees and invitees over and along the roads, roadways and footpaths on
the retained premises or such portion thereof as may be designated from
time to time by the Landlord and subject to compliance with such reasonable
regulations as may be made in relation thereto by the Landlord for the
purpose of access to and egress from the demised premises to the public
road;
3. Full right and liberty for the Tenant, its employees, customers, licensees
and invitees to park private motor cars in 81 car-parking spaces allocated
from time to time by the Landlord in accordance with the terms of this
lease and which for the time being shall be the spaces coloured yellow on
plan no. 2 annexed hereto ("the car spaces");
4. Full right and liberty to go and repass with or without vehicles over and
along the road and roadways on the retained premises or such portion
thereof as may be designated from time to time by the Landlord acting
reasonably and subject to compliance with such reasonable regulations as
may be made in relation thereto by the Landlord for the purposes of access
to and egress from the car spaces to the public road;
5. Full right and liberty to pass and repass on foot at all times over the
roads, roadways and footpaths on the retained premises or such portion
thereof as may be designated from time to time by the Landlord acting
reasonably and subject to compliance with such reasonable regulations as
made from time to time by the Landlord in relation thereto by the Landlord
for the purpose of access to and egress from the car spaces to the demised
premises;
37
6. Full right and liberty to the Tenant, its servants and agents to enter upon
so much of the retained premises and to remain there as shall be necessary
for the purposes of repairing, maintaining, relaying or replacing (as
appropriate) the demised premises, or the conduits serving same or the car
spaces.
38
SIGNED SEALED AND DELIVERED by
the Landlord in the presence of:-
SIGNED AND SEALED by
the Tenant in the presence of:-
39