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EXHIBIT 10.26
DATED 12 JULY 2000
(1) METACREATIONS INTERNATIONAL LIMITED
(2) PIVOTAL TECHNOLOGIES CORPORATION LIMITED
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ASSIGNMENT OF PART OF GROUND FLOOR,
WILSON HOUSE, FENIAN STREET, DUBLIN 2
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MATHESON ORMSBY PRENTICE
30 HERBERT STREET
DUBLIN 2
IRELAND
TEL +353 1 619 9000
FAX +353 1 619 9010
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THIS ASSIGNMENT is made on 12 JULY 2000 between
(1) METACREATIONS INTERNATIONAL LIMITED having its registered office at 2
Harbourmaster Place, Custom House Dock, Dublin 1 (hereinafter called the
"Vendor" which expression shall where the context so admits or requires
include it successors and assigns):
(2) PIVOTAL TECHNOLOGIES CORPORATION LIMITED having its registered office at 30
Herbert Street (hereinafter called the "PURCHASER" which expression shall
where the context so admits or requires include its successors and assigns)
WHEREAS
A. By Lease (the "LEASE") dated 22 September 1999 between (1) The HW Wilson
Company Inc. and (2) The Vendor, the premises (the "PREMISES") described in
the Schedule hereto were demised unto the Vendor for the period commencing
on 22 August 1999 and expiring on 21 August 2001 (the "TERM") subject to
the yearly rent of IEP76,420.00 (the "RENT") and to the covenants on the
part of the tenant and conditions therein contained.
B. The Vendor has agreed with the Purchaser for the sale to the Purchaser of
the Premises for IEP25,500.00
NOW THIS ASSIGNMENT WITNESSETH
1. That in pursuance of the said agreement and in consideration of
IEP25,500.00 (Twenty Five Thousand Five Hundred Irish Pounds) now paid by
the Purchaser to the Vendor (the receipt of which the Vendor hereby
acknowledges) the Vendor as beneficial owner hereby GRANTS AND ASSIGNS unto
the Purchaser the Premises TO HOLD the same unto and to the use of the
Purchaser for all the residue unexpired of the Term SUBJECT to the Rent and
to the covenants on the part of the tenant and the conditions contained in
the Lease.
2. The Purchaser hereby covenants with the Vendor to pay the Rent and observe
and perform the covenants on the part of the tenant and conditions
contained in the Lease and to indemnify and keep indemnified the Vendor
against all actions, costs, claims and demands arising out of the
non-payment of the Rent or any part thereof or the breach, non-observance
or non-performance of the said covenants and conditions or any of them.
IT IS HEREBY CERTIFIED
1. That the Premises is situate the City of Dublin.
2. That the consideration (other than rent) for the sale is wholly
attributable to property which is not residential property and that the
transaction effected by this instrument does not form part of a larger
transaction or of a series of transactions in respect of which the amount
or value or aggregate amount or value of the consideration (other than
rent) which is attributable to property which is not residential property
exceeds L50,000.00.
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3. That Section 29 (Conveyance on Sale combined with Building Agreement for
dwellinghouse/apartment) of the Stamp Duties Consolidation Act, 1999 does
not apply to this instrument.
IN WITNESS WHEREOF the parties have duly executed this Assignment on the date
first written above.
SCHEDULE
ALL THAT part of the ground floor of Wilson House, Fenian Street, Dublin 2 as is
more particularly described in and demised by a supplemental lease (the
"SUPPLEMENTAL LEASE") dated 11 June 1996(1) Dwale Limited (2) The HW Wilson
Company Inc. and coloured yellow on the map annexed thereto 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 therein for use by the
tenant therein within the curtilage of Wilson 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 lease (the
"HEAD LEASE") dated 29 October 1992(1) Dwale Limited(2) The HW Wilson Company
Inc. and the Supplemental Lease and where appropriate subject to the rights of
others mentioned in the Head Lease.
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SIGNED FOR AND ON BEHALF
of METACREATIONS INTERNATIONAL
LIMITED by its lawfully appointed Attorney
LISA DOYLE in the presence of: /s/ Lisa Doyle
PRESENT WHEN THE COMMON SEAL
of PIVOTAL TECHNOLOGIES CORPORATION
LIMITED was affixed hereto: _____________________________
Director
_____________________________
For Matsack Trust Limited
Secretary
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DATED 12 JULY 2000
(1) METACREATIONS INTERNATIONAL
LIMITED
(2) PIVOTAL TECHNOLOGIES CORPORATION
LIMITED
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ASSIGNMENT OF GROUND FLOOR, WILSON
HOUSE, FENIAN STREET, DUBLIN 2
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MATHESON ORMSBY PRENTICE
30 HERBERT STREET
DUBLIN 2
IRELAND
TEL + 353 1 619 9000
FAX + 353 1 619 9010
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THIS SUB-LEASE dated the 22nd day September 1999
BETWEEN
(1) THE H. W. WILSON COMPANY INC. having its principal office at 950
University Avenue, Bronx, New York 10452, USA and with an address at
Wilson 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 lease ends)
AND
(2) METACREATIONS INTERNATIONAL LIMITED having its registered office at 2
Harbourmaster Place, Custom House Dock, Dublin 1 (hereinafter referred
to as "the Tenant" which expression shall include whoever for the time
being is entitled to the property under this lease)
1 In this lease:
1.1 Whenever there is more than one tenant, all their obligations
can be enforced against all of the tenants jointly and against
each individually;
1.2 A reference to an Act of the Oireachtas refers to that Act as it
applies at the date of this lease and any later amendment or
re-enactment of it;
1.3 "Interest" means the rate of interest defined as the prescribed
rate in the Head Lease as hereinafter defined;
1.4 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 "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" (herein
after separately called the Supplemental Lease) dated 11th June, 1996
made between the same parties.
3 In exchange for the obligations undertaken by the Tenant:-
3.1 The Landlord lets the property described below ("the Property")
to the Tenant for the period commencing on the 22nd day of
August 1999 and expiring on the 21st day of August 2001 (subject
to the option to renew contained in clause 6.1 hereof) on the
Tenant agreeing to pay (pound)76,420 a year ("the Basic Rent")
and as further rent ("insurance rent") the entire of the sums
the Landlord spends each year during the lease period as
required by the Supplemental Lease to reimburse the Superior
Landlord for the cost of insuring the Property.
3.2 The Property is that part of the Ground Floor of Wilson House,
Fenian Street, Dublin 2 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 carparking spaces as
designated from time to time by the Landlord for use by the
Tenant within the cartilage of Wilson 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.
4 The Tenant agrees with the Landlord:-
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4.1 To pay the Basic Rent by equal quarterly instalments in advance
on the days appointed for payment of rent under the Head Lease
in each year throughout the lease period (the first and last
payments being proportionate sums if appropriate, the first
payment being made on the date of this lease);
4.2 To pay the insurance rent on the next quarter day after being
notified of the amount of it.
4.3 To pay the entire of the service charge payable by the Landlord
under the Supplemental Lease. Each instalment is due as soon as
the Landlord gives the Tenant notice, accompanied by reasonable
evidence of the amount payable under the Supplemental Lease,
provided always that it is hereby agreed and declared by 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 and
the Tenant's liability hereunder shall be reduced accordingly
where appropriate.
4.4 Not to reduce any payment of rent by making any deduction from
it or by setting any sum off against it.
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 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
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occupier of them (excluding any tax payable by the Landlord occasioned
by any disposition of or dealing with the reversion of this Lease or any
other Landlord's Capital Tax).
4.6 To pay Interest on any rent or other sum payable hereunder which is paid
more than fourteen days after it falls due.
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 obligation to pay rent.
4.8 Not at any time to assign transfer underlet or part with or share 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
without the prior consent in writing of the Landlord and (without
prejudice to the provisions of Clause 4.7 hereof and for the purposes of
clarification only) by the Superior Landlord.
4.9 To pay the stamp duty payable on this lease and counterpart and any VAT
payable on the granting of this lease.
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 authorised
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 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.
5 The Landlord agrees with the Tenant:-
5.1 So long as the Tenant does not contravene any term of this lease
to allow the Tenant to exclusively possess and use the Property
without interference from the Landlord, anyone who derives title
from, or Trustee for, the Landlord or anyone from whom the
Landlord derives title.
5.2 To comply with its obligations where appropriate and pay the
rents and other sums payable under the Head Lease promptly.
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 endeavours 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 The parties agree:
6.1 The Tenant, if it wishes to remain in occupation of the Property
for a further one year at the expiration of the term herein,
must, not less than six months prior to the expiration of the
term herein, serve a notice in writing on the Landlord
expressing its wish to remain in the Property for a further
year. If the Landlord is agreeable, the Landlord shall notify
the Tenant of its agreement to allow the Tenant to remain in
occupation of the Property for one year after the expiration of
the term subject to the same terms, covenants and conditions
contained in this Sub-Lease save the option to renew herein. If
the Landlord is not agreeable then the Landlord shall notify the
Tenant that it is not prepared to allow the Tenant to remain in
occupation after the expiration of the term herein and in such
event the Tenant shall vacate the Property by the date of expiry
of the term herein and in accordance with its obligations
hereunder so to do.
6.2 The Landlord is entitled to forfeit this Lease by entering any
part of the Property whenever the Tenant:-
6.2.1 is twenty one days late in paying any rent even if it
was not formally demanded; provided that Landlord has
given Tenant at least five days written notice with an
opportunity to cure;
6.2.2 has not complied with any obligation in this Lease,
provided that Landlord has given Tenant at least five
days written notice with an opportunity to cure;
6.2.3 when the Tenant being an individual 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.
The forfeiture of this Lease does not cancel any outstanding
obligation which the Tenant owes the Landlord.
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
Basic Rent 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. Any dispute
whether and how this clause applies is to be referred to
arbitration.
6.4 Any disputed matter referred to arbitration under this 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.
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 the
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Landlord's servants and agents and be served on the Tenant's servants or
agents.
IN WITNESS whereof the parties hereto have caused their Common Seals to be
affixed the day and year first herein written.
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PRESENT when the Common Seal of the )
Landlord was affixed hereto:- )
/s/ WILLIAM V. JOYCE, V.P.
-----------------------------------
William V. Joyce, V.P.
PRESENT when the Common Seal of the )
Tenant was affixed hereto:- )
/s/ TERRY KINNINGER
-----------------------------------
Terry Kinninger, Director
/s/ JOHN HARTNETT
-----------------------------------
John Hartnett, Director
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[GROUND FLOOR PLAN]
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Dated the 22nd day of September 1999
THE H. W. WILSON COMPANY
INC.
One Part
- AND -
METACREATIONS
INTERNATIONAL LIMITED
Other Part
SUB-LEASE
ARTHUR COX
Solicitors
Earlsfort Centre
Earlsfort Terrace
Dublin 2
