EXHIBIT 10.3.2
OFFICE OCCUPATION
AGREEMENT
1. THE OCCUPIER
NAME: LINUXCARE INC
ADDRESS: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,.
2. THE OWNER
NAME: SWALLOWFIELD OFFICE SERVICES LIMITED
ADDRESS: ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
3. OFFICES
BUILDING IN WHICH THE OFFICES ARE LOCATED: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇
OFFICE NUMBER/REFERENCE: 22.
4. TERMS OF OCCUPATION
COMMENCEMENT DATE: 1ST NOVEMBER 1999 TERMINATION DATE: 30TH APRIL 2000
MONTHLY OCCUPATION FEE (PLUS VAT):
pounds1,350.00 + VAT
SERVICE RETAINER: pounds2,700.00
THE OTHER TERMS AND CONDITIONS OF OCCUPATION ARE SET OUT OVERLEAF AND THE
OCCUPIER HEREBY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THEM.
5. PRELIMINARY AGREEMENT AND COURT ORDER
COURT: N/A PRELIMINARY AGREEMENT: NO
DATE OF COURT ORDER: N/A DATE OF PRELIMINARY AGREEMENT: N/A
NUMBER OF COURT ORDER: N/A
6. SIGNATURE AND DATE
SIGNED BY AN AUTHORISED SIGNATORY FOR AND ON SIGNED BY AN AUTHORISED SIGNATORY FOR AND ON
BEHALF OF THE OWNER: BEHALF OF THE OCCUPIER:
NAME (printed): NAME (printed): X ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CFO
SIGNATURE: SIGNATURE: X /s/ Signature Illegible CFO
DATE OF THIS OFFICE OCCUPATION AGREEMENT:
OFFICE OCCUPATION
AGREEMENT
1. THE OCCUPIER
NAME: LINUXCARE INC
ADDRESS: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 94103,,
2. THE OWNER
NAME: SWALLOWFIELD OFFICE SERVICES LIMITED
ADDRESS: ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
3. OFFICES
BUILDING IN WHICH THE OFFICES ARE LOCATED: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇
OFFICE NUMBER/REFERENCE: 22.
4. TERMS OF OCCUPATION
COMMENCEMENT DATE: 1ST NOVEMBER 1999 TERMINATION DATE: 30TH APRIL 2000
MONTHLY OCCUPATION FEE (PLUS VAT):
pounds1,350.00 + VAT
SERVICE RETAINER: pounds2,700.00 /s/ Signature Illegible
THE OTHER TERMS AND CONDITIONS OF OCCUPATION ARE SET OUT OVERLEAF AND THE
OCCUPIER HEREBY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THEM.
5. PRELIMINARY AGREEMENT AND COURT ORDER
COURT: N/A PRELIMINARY AGREEMENT: NO
DATE OF COURT ORDER: N/A DATE OF PRELIMINARY AGREEMENT: N/A
NUMBER OF COURT ORDER: N/A
6. SIGNATURE AND DATE
SIGNED BY AN AUTHORISED SIGNATORY FOR AND ON SIGNED BY AN AUTHORISED SIGNATORY FOR AND ON
BEHALF OF THE OWNER: BEHALF OF THE OCCUPIER:
NAME (printed): NAME (printed): X X
SIGNATURE: SIGNATURE: X X.
DATE OF THIS OFFICE OCCUPATION AGREEMENT:
7. INTERPRETATION
In this Agreement the expressions set out below carry the following
meanings:
"Agreement" - this Office Occupation Agreement;
"Common Parts" - the parts of the Building from time to time designated
as such by the Owner;
"Chargeable Services" - any services (other than the Inclusive
Services) which are at any time made available to the Occupier by the
Owner and details of which are available at the Building;
"Fixtures and Fittings" - the fixtures and fittings listed in an
Inventory to be agreed between and signed on behalf of the Owner and
the Occupier;
"Inclusive Services" - the services specified in the Schedule;
"Occupier", "Owner", "Offices", "Commencement Date", "Building",
"TERMINATION DATE", "Monthly Occupation Fee" and "Service Retainer"
carry the meanings given in Clauses 1 to 4 and "Term" means the term of
this Agreement commencing on the Commencement Date and terminating on
the Termination Date
References to the parties shall include their respective successors in
title and references to the Owner shall also include any person or
company appointed by the Owner to carry out all or part of the Owner's
obligations under this Agreement.
8 DEMISE AND TERM
8.1 The Owner lets to the Occupier the Offices including the Fixtures and
Fittings for the duration of the Term.
8.2 The Owner grants to the Occupier the right in common with the Owner and
all other persons so entitled:
(a) to use such lavatories and kitchens as are designated by the Owner for
use by the Occupier; and
(b) to use the entrance hall, passages, staircases and the lift(s) within
the Common Parts for the purposes only of gaining access to and egress
from the Offices.
8.3 The Offices are let to the Occupier subject to the rights of the Owner,
and all others authorised from time to time by the Owner to use,
repair, maintain and replace any service conducting media within the
Offices which rights are hereby reserved.
9. FINANCIAL MATTERS
9 1 The Occupier shall pay by Direct Debit:-
(a) the Monthly Occupation Fee plus VAT in advance on the 1st day of each
calendar month of the Term; and
(b) on demand from time to time any sums due in respect of the use of any
Chargeable Services plus VAT.
9.2 The Monthly Occupation Fee includes the cost of providing the Inclusive
Services but not the cost of providing the Chargeable Services.
9.3 On or before the Commencement Date the Occupier shall pay the Service
Retainer which will be held by the Owner for the benefit of the Owner
as security for any breach of the terms of this Agreement.
The Owner may withdraw money from the Service Retainer at any time in
order to make good any sums payable by the Owner or the Occupier as the
case may be which result from any breach by the Occupier of any of the
terms of this Agreement. After any withdrawal from the Service
Retainer, the Occupier shall on demand by the Owner pay such sum as is
necessary to restore the Service Retainer to its full amount as set out
in Clause 4. Any withdrawal from the Service Retainer shall be without
prejudice to any other rights or remedies of the Owner in relation to
the relevant breach of the terms of this Agreement.
The Service Retainer (or such balance of it, if any, as remains after
any withdrawals) shall be refunded to the Occupier within twenty one
days from the Termination Date or sooner at the Owner's absolute
discretion.
The Service Retainer may not be used by the Occupier as payment for any
sum due under this Agreement.
9.4 The Occupier shall keep the Owner indemnified from and against all
expenses, losses and claims arising from any breach of the Occupier's
obligations contained in this Agreement, or from the use of the Offices
by the Occupier, or arising from any act, omission, neglect or default
of the Occupier.
9.5 If the Occupier fails to pay the Monthly Occupation Fee or any other
monies due under this Agreement on the due date (whether formally
demanded or not), the Occupier shall pay interest at 5% above the base
rate of National Westminster Bank Plc from time to time on such overdue
sums calculated from the due date to the date of payment (subject to a
minimum interest payment of pounds200).
9.6 The Occupier shall pay all costs and expenses (including legal costs
and surveyors' fees) which may be incurred by the Owner in connection
with the recovery of arrears of the Monthly Occupation Fee or other
monies payable under this Agreement or for the purposes of or
incidental to the preparation and service of any notices or proceedings
under section 146 of the Law of Property ▇▇▇ ▇▇▇▇ notwithstanding that
forfeiture may be avoided otherwise than by relief granted by the
Court.
9.7 All sums payable under this Agreement shall be paid to the Owner in
pounds sterling in cleared funds for value to the Owner without any
deduction for set off, counterclaim or tax.
10. OCCUPIER'S COVENANTS
The Occupier covenants with the Owner:
REPAIR AND ALTERATIONS
10 1 not to make any alteration or addition to the Offices or the Building;
10.2 to keep the Offices and the Fixtures and Fittings in the same state of
repair and condition as they are now in (fair wear and tear excepted);
10.3 not to damage any of the decorations or any of the Fixtures and
Fittings or any equipment in the Offices or the Building;
10.4 not to display or affix any notice advertisement placard or name plate
to any part of the Offices or Building;
10.5 not, without the previous written consent of the Owner, to install any
fixtures, fittings or equipment in the Offices;
ACCESS
10.6 to permit the Owner and those authorised by the Owner to enter the
Offices for any reasonable purpose upon reasonable prior notice subject
to such parties making good all damage thereby occasioned to the
Offices or the Occupier's fixtures and fittings,
ALIENATION
10 7 not to assign, charge, sublet or part with or share possession of the
whole or any part or parts of the Offices;
USE
10.8 to use the Offices only as high-class offices in connection with the
Occupier's business;
10.9 to comply with all statutory requirements relating to the Offices,
including but without limitation all town and country planning
legislation;
10.10 to comply with the requirements of any insurers of the Offices and/or
the Building and not to do or omit anything which would result in any
policy of insurance in respect of the Offices and/or the Building
becoming void or voidable or otherwise prejudiced, or which would cause
the premium for such policy to be increased;
[INTENTIONALLY LEFT BLANK]
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10.11 to comply with all existing and future regulations as the Owner may
from time to time impose in relation to the use of the Offices, the
Building or facilities therein and/or the management of the Building
and car parking;
10.12 not to do anything in the Offices or the Building which is or may
become a nuisance or annoyance or cause danger, injury or damage to the
Owner or other occupiers of the Building:
10.13 not to use the address of the Building or the Offices as the Occupier's
registered office;
10.14 not to invite the public generally to come to the Offices or the
Building and not to use the Offices, or the Building or the address of
either or purport to use the Offices, or the Building or the address of
either for any purpose which might attract casual callers;
10.15 not to use any electrical appliance within the Offices or the Building
which has not been tested on a regular basis in accordance with the
Electricity at Work Regulations (1989);
10.16 not to bring any animal into the Offices or the Building;
10.17 not to smoke in any part of the Offices or the Building or in the
immediate vicinity of the Building
10.18 not to introduce any hazardous substances or known pollutants into the
Offices of the Building.
10.19 not during the term of this Agreement or for a period of 6 months after
the expiration of sooner determination of the term of this Agreement to
employ (directly or indirectly) any person who has been in the
employment of the Owner at the Building during the term and if the
Occupier breaches the provisions of this clause the Occupier shall pay
to the Owner on demand by way of liquidated damages an amount equal to
40% of the gross annual remuneration of such employee
11. OWNER'S COVENANTS
Subject to the Occupier paying the Monthly Occupation Fee when due and
performing and observing the obligations on its part contained in this
Agreement, the Owner agrees:
11.1 that the Occupier may peaceably hold and enjoy the Offices during the
Term without any interruption;
11.2 to use reasonable endeavours to provide the Inclusive Services:
11.3 to grant 24 hour access seven days a week to the Offices.
12. PROVISOS
The Owner and the Occupier agree as follows:
12.1 In either or both of the circumstances set out in Sub-clauses (a)-(b)
of this Clause 12.1, it shall be lawful for the Owner or any person
duly authorised by it to re-enter upon the Offices or any part thereof
in the name of the Owner at which time this Agreement shall absolutely
determine but without prejudice to any rights of the Owner in respect
thereof or antecedent claim or breach of any of the terms of this
Agreement:
(a) If and whenever the Monthly Occupation Fee or any part of it is in
arrears and unpaid for ten working days after becoming due (whether
formally demanded or not);
(b) if the Occupier at any time fails or neglects to perform or observe any
of the covenants, terms, conditions of agreements contained in this
Agreement;
12.2 Upon the expiry or sooner determination of this Agreement (for whatever
reason) the Occupier shall:
(a) immediately vacate the Offices;
(b) remove all its goods and effects from the Offices; and
(c) cease to make use of or benefit from the Inclusive Services or
Chargeable Services;
12.3 In default of immediate compliance with the obligations by the Occupier
in clause 12.2, the provisions of this clause 12.3 shall apply:-
(a) The Owner or any servant or agent of the Owner shall be entitled
forthwith to enter the Offices and remove the Occupier's goods and
effects and deposit the same (at the Occupier's own risk) in an
appropriate part of the Building or elsewhere for collection.
(b) Subject to Clause 12.3(c) the Occupier irrevocably appoints the Owner
to be the Occupier's agent to sell or dispose of (at the Owner's
absolute discretion) any goods and effects left by the Occupier for
more than five days after the expiry or sooner determination of the
Term subject to any conditions which the Owner thinks fit and without
the Owner being liable to the Occupier save to account for the net
proceeds of sale less the cost of storage (if any) and of sale and any
other expenses reasonably incurred by the Owner.
(c) Any goods or other effects left at the Offices by the Occupier shall be
subject to a lien in favour of the Owner in respect of any liability of
the Occupier to the Owner pursuant to or arising out of this Agreement
and the Owner shall have power to sell or otherwise dispose of or
direct the sale or disposal of all such goods and effects on whatever
terms the Owner shall think fit and to apply the net proceeds of such
sale or disposal (less any deductions as referred to in Clause 12.3(b))
towards satisfaction of such liability.
12.4
(a) The Owner does not exclude or limit its liability to the Occupier in
respect of liability for death or personal injury to the extent that it
results from the negligence of the Owner or its employees, agents or
sub-contractors;
(b) Except as provided in clause 12.4(a) the Owner shall not be liable to
the Occupier nor shall the Occupier have any claim against the Owner in
tort, contract or otherwise for any loss, damage, injury or expense
arising out of or in connection with the Occupier's occupation of the
Offices or the provision of any services by the Owner including
(without prejudice to the generality of the foregoing) in respect of
any loss of profit, production, anticipated savings, goodwill or
business opportunities or any type of indirect, economic or
consequential loss, even if that loss or damage was reasonably
foreseeable or the Owner was aware of the possibility of that loss or
damage arising.
12.5 If the Offices or any part shall at any time be destroyed so as to be
unfit for occupation or use then, save to the extent that the insurance
of the Offices shall have been invalidated or payment of the policy
monies refused by or in consequence of any act, neglect, omission or
default of the Occupier, the Monthly Occupation Fee, or a fair
proportion of it according to the nature and extent of the damage
sustained, shall be suspended from the date of such damage or
destruction until the Offices shall have been rebuilt or reinstated and
made fit for occupation, and any dispute concerning this provision
shall be determined by an arbitrator in accordance with the Arbitration
▇▇▇ ▇▇▇▇.
12.6 The Owner shall be entitled to discontinue the provision of the
Inclusive Services and/or the Chargeable Services in respect of any
period or periods during which the Occupier shall be in breach of any
of the provisions of this Agreement.
12.7 Section 196 of the Law of Property ▇▇▇ ▇▇▇▇ (as to service of notices)
as amended by the Recorded Delivery Service ▇▇▇ ▇▇▇▇ shall apply to
this Agreement provided that the addresses for service of notices on
the Occupier or the Owner shall be those set out in Clauses 1 and 2
respectively or such other addresses as either party may notify to the
other from time to time.
13 EXCLUSION OF SECURITY OF TENURE
Having been authorised so to do by order of the Court under the
provisions of section 38(4) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
details of which are set out in Clause 5, the Owner and the Occupier
agree that the provisions of sections of 24-28 of the Act shall be
excluded in relation to the tenancy hereby created.
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SCHEDULE
(INCLUSIVE SERVICES)
* Business rates
* Water rates
* Reception services
* Personalised telephone answering services
* Heating
* Lighting
* Electricity
* Cleaning
* Repair and Maintenance of the Building
* Insurance of the Building & Owner's contents
* One switchboard extension with DDI facilities and standard handset per desk
provided by the Owner
* Subject to availability, courtesy Network access of two hours per month at
the other UK centres and eight hours per month at all other worldwide
centres in the HQ Business Centre network (hours may not be carried forward
if unused).
Further details of the Inclusive Services are available on request from the
Owner.
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