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Jubilee Mall Lease Agreement - 17/2/10 Page 1 of 1
AGREEMENT OF LEASE
Entered into by and between:
JUBILEE CROSSING (PTY) LTD
(Registration Number 2006/021420/07)
(VAT Number ___________________________)
a Company duly registered and incorporated in accordance with the Company Laws
of the Republic of South Africa
trading as JUBILEE MALL SHOPPING CENTRE
(hereinafter referred to as the “Lessor”
-and-
(Registration Number__________________________)
(VAT Number _______________________________)
a Company duly registered and incorporated in accordance with the Company Laws
of the Republic of South Africa
trading as ________________________
(hereinafter referred to as the “Lessee”)
The Lessor hereby lets to the Lessee who hereby hires the premises described herein
on the terms and conditions as set out in the Schedule, General Conditions of Lease
and Annexures thereto
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 2 of 2
SCHEDULE TO GENERAL CONDITIONS OF LEASE
1.THE LESSOR JUBILEE CROSSING (PTY) LTD
Registration No. 2006/021420/07
With chosen domicilium citandi et
executandi at:
Main Rotor Building
2180 Theron Street
Lyttelton Manor Ext 8
0157
2.THE LESSEE _____________________________
Registration
No.___________________________
3.RENTAL
3.1MONTHLY RENTAL (EXCLUDING VAT)
R __________ per month from ____________ to ______________
R __________ per month from ____________ to ______________
R __________ per month from ____________ to ______________
R __________ per month from ____________ to ______________
R __________ per month from ____________ to ______________
The annual compounded escalation rate inherent in the rental amount reflected
above is _______%.
Notwithstanding the fact that the agreement of lease commences on the
__________ as per Item 15 hereof the Lessee shall be liable for rental calculated
from the opening date i.e. ___________ to __________ on a pro rata basis.
3.2MONTHLY OPERATING COST (EXCLUDING VAT)
R __________ per month from _____________ to _____________
R __________ per month from _____________ to _____________
R __________ per month from _____________ to _____________
R __________ per month from _____________ to _____________
R __________ per month from _____________ to _____________
The annual compounded escalation rate inherent in the operating cost reflected
above is _______%.
Notwithstanding the fact that the agreement of lease commences on the
___________ as per Item 15 hereof the Lessee shall be liable for rental calculated
from the opening date i.e. ___________ to ____________ on a pro rata basis.
3.3MONTHLY PARKING RENTAL (EXCLUDING VAT)
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 3 of 3
R ___________ per month from ____________ to _____________
R ___________ per month from ____________ to _____________
R ___________ per month from ____________ to _____________
R ___________ per month from ____________ to _____________
R ___________ per month from ____________ to _____________
The annual compounded escalation rate inherent in the operating cost reflected
above is _______%.
Notwithstanding the fact that the agreement of lease commences on the
___________ as per Item 15 hereof the Lessee shall be liable for rental calculated
from the opening date i.e. ___________ to ____________ on a pro rata basis.
4MARKETING CONTRIBUTION (EXCLUDING VAT)
R __________ per month from _____________ to _____________
R __________ per month from _____________ to _____________
R __________ per month from _____________ to _____________
R __________ per month from _____________ to _____________
R __________ per month from _____________ to _____________
The annual compounded escalation rate inherent in the operating cost reflected
above is _______%.
Notwithstanding the fact that the agreement of lease commences on the
___________ as per Item 15 hereof the Lessee shall be liable for rental calculated
from the opening date i.e. ___________ to ____________ on a pro rata basis.
5.DEPOSIT R _____________________
6.DEED OF SURETYSHIP (S)
Name ____________________________
Identity Number ____________________________
Domicilium
7.MINIMUM BUSINESS HOURS
Monday to Friday 8H30 to 18H00
Saturdays 8H30 to 18H00
Sundays 8H30 to 15H00
Public Holidays 8H30 to 18H00
8.PERMITTED USE OF THE PREMISES
The premises shall be used solely for the purpose of ____________ and
for no other reason whatsoever.
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 4 of 4
9.PREMISES Shop no._______________
_________________Shopping Centre
_______________________________
__________________________________
Parking Bay No.__________
10.PROPERTY _____________________________
11.RENTABLE AREA OF THE Approximately ______m2 (_____square
PREMISES meters) as per Annexure “C”.
12.BENEFICIAL OCCUPATION ______ (________) days.
13.COMMENCEMENT DATE
14EXPIRY DATE
15.OPTION TO RENEW
16.ANNUAL TURNOVER ______%(_______Percent)
PERCENTAGE
17.LESSEE’S FINANCIAL YEAR Last day of ______________________
END
18LESSEE’S PRO RATA SHARE ______%
19.ASSESMENT RATES AND The Lessee is liable for all increases as per
OTHER TAXES (EXCLUDING VAT) Clause 7 of the General Conditions of lease.
OR (Full Rates)
20.REFUSE DEPOSIT R________ (________) being the cost
of a wheelie bin.
21.ELECTRICITY DEPOSIT R______(______) directly payable to the
Lessor or its nominee.
22.WATER DEPOSIT R_____(______) directly payable to the
Lessor its nominee.
23.ADMINISRATION CHARGES
Administration charges We recommend between R 1200.00 and R
1500.00.
VAT at 14% __________
TOTAL DUE
24.PENALTY FEE FOR LATE R ____________ per day or part thereof.
OPENING
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 5 of 5
25.ANNEXURES
ANNEXURE “A” – AUTHORISING RESOLUTION
ANNEXURE “B” – PLAN OF THE PREMISES
ANNEXURE “C” – DEED OF SURETYSHIP
ANNEXURE “D” – TENANT CRITERIA DOCUMENT
ANNEXURE “E” – BANK GURANTEE
ANNEXURE “F” – FRANCHISE BUSINESS CONTINUATION
ANNEXURE “G” – HOUSE RULES
ANNEXURE “H” – RENTAL DEBIT AUTHORISATION
ANNEXURE “I” – EVACUATION PLAN
ANNEXURE “J” – FICA DOCUMENTATION
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 6 of 6
GENERAL CONDITIONS OF LEASE
DETAIL
1. INTERPRETATION & DEFINITIONS
2. PREMISES
3. LEASED PREMISES
4. RENT AND TURNOVER RENT
5. DEPOSIT
6. ASSESMENT RATES AND OTHER EXPENSES
7. FEES AND CHARGES PAYABLE BY THE LESSEE
8. MARKETING
9. USE OF PREMISES
10. LESSEE’S GENERAL OBLIGATIONS
11. ADVERTISING AND SIGNS
12. LESSOR’S RIGHTS
13. LESSOR’S DUTIES
14. EXEMPTION FROM LIABILITY
15. FIRE HAZARDS
16. ALTERATIONS, ADDITIONS AND
REINSTATEMENT
17. SUBLETTING, CHANGE IN CONTROL AND SALE
OF BUSINESS
18. PREMISES TO BE KEPT CLEAN
19. PARKING
20. DAMAGE AND DESTRUCTION OF PREMISES
21. RE-BUILDING
22. LESSOR’S RIGHTS TO REPAIR AND ADD TO
BUILDINGS
23. RELOCATION
24. BREACH OF LEASE BY THE LESSEE
25. INTEREST AND LEGAL COSTS
26. COSTS
27. CERTIFICATES
28. CHANGE OF BUILDING NAME
29. SURETYSHIPS
30. GENERAL
31. LESSOR’S CONSENT
32. JURISDICTION OF MAGISTRATE’S COURT
33. DOMICILIUM CITANDI ET EXECUTANDI
34. COMPANY TO BE FORMED
35. LIABILITY OF PARTNERS
36. FICA REQUIREMENTS
37. OPTION TO RENEW
38. CONSENT TO CREDIT VERIFICATION
39. SEVERABILITY
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 7 of 7
1. INTERPRETATION & DEFINITIONS
In this Agreement:
1.1 the terms and conditions contained in the Agreement of
Lease will
take preference over any terms and conditions that is
contained
in annexures hereto, in the event of conflicting interpretation;
1.2 words importing any one gender shall include the other, and
words importing the singular shall include the plural and vice
versa;
1.3 the headings of paragraphs are used for reference only and
are in no way to be deemed to explain, modify, amplify or aid
in the interpretation of the Agreement;
1.4 reference to the Lessor shall at all times include reference to
the Lessor’s duly appointed and authorized agents from time
to time;
1.5 reference to persons shall include natural persons, juristic
persons and trusts;
1.6 “beneficial occupation” shall mean (where applicable) the
granting of access to the premises for purposes of fit-out
thereof in accordance with the Lessee Criteria Document
attached hereto marked Annexure “D”;
1.7 “the building” shall mean the building of which the premises
form part as extended and altered from time to time,
together with any parking area forming part thereof erected
on the property;
1.8 “the commencement date” shall mean the date as stipulated
in Item 13 of the Schedule;
1.9 “common area” shall mean those portions of the building not
actually let and not intended to be let by the Lessor or its
duly authorized representatives as well as the property on
which the building is situated;
1.10 “the expiry date” shall mean the date as stipulated in Item 14
of the Schedule;
1.11 “the house rules” shall mean the rules as published by the
Lessor or its agents from time to time. A copy of the initial
House Rules is attached hereto as Annexure “G”;
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 8 of 8
1.12 “insurance of the building” shall mean the insurance policy or
the contract documents relating to the insurance policy in
terms of which the Lessor has insured the building;
1.13 “lease year” shall mean a period of 12 (Twelve) calendar
months (or a pro rata portion thereof as the case may be),
commencing on the commencement date as stipulated in
Item 13 of the Schedule;
1.14 “the Lessee’s pro rata share” shall mean the Lessee’s share
expressed as a percentage of the rentable area of the
premises in relation to the total rentable area of the building
from time to time as recorded in Item 18 of the Schedule,
being the percentage at the commencement date;
1.15 “the Lessor” shall mean the Lessor as more fully described in
Item 1 of the Schedule, including, where applicable, the
Lessor’s agents appointed from time to time;
1.16 “the Lessor’s Architect” shall mean the architect appointed by
the Lessor or its agents from time to time;
1.17 “the Lessor’s auditors” shall mean the auditors appointed by
the Lessor and/or its agents from time to time;
1.18 “the monthly rent” shall mean the monthly rent payable by
the Lessee to the Lessor as set out in Item 3.1 of the
Schedule;
1.19 “the operating cost” shall mean the monthly operating cost
payable by the Lessee to the Lessor as set out in Item 3.2
of the Schedule;
1.20 “the parties” shall mean the Lessor and the Lessee
collectively;
1.21 “the premises” shall mean that portion of the building as
demarcated on the plans attached hereto marked Annexure
“C”. The plan only serves to identify the premises and no
warranties are given in regard thereto;
1.22 “the prime rate” shall mean the public quoted prime overdraft
rate of interest (compounded monthly in arrear) published
from time to time by the Lessor’s bankers as being the prime
overdraft rate as certified by any manager of that bank,
whose appointment and designation need not be proved;
1.23 “the property” shall mean the property as described in Item
10 of the Schedule;
1.24 “rentable area of the premises” shall mean the total extent of
the premises as measured in accordance with the South
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 9 of 9
African Property Owners’ Association (hereinafter referred to
as “SAPOA”) method for measuring floor areas and certified
by the Lessor’s architect;
1.25 “total rentable area of the building” shall mean the rentable
area of the building from time to time, as measured in
accordance with the SAPOA method for measuring floor areas
and certified by the Lessor’s architect;
1.26 all signatories to this Agreement of Lease warrant that they
are duly authorized to sign this Agreement. A copy of a
resolution containing such authorization is attached hereto
marked Annexure “A”, alternatively in possession of the
person(s) signing this Agreement of Lease, failing the
existence of such authorization, it will be deemed that such
signatory (ies) signed the Agreement of Lease in their
personal capacity despite any other remedies available in law
to the party whose signatory (ies) are authorized. [DRAFTING
NOTE: Rather make sure of authority as the signatory may be
a man-of-straw]
2. PREMISES
2.1 The Lessor hereby lets to the Lessee, which hires the
premises described in Item 9 of the Schedule, with a rentable
area with the approximate square meterage as described in
Item 11 of the Schedule;
2.2 Upon completion of the premises, the Lessor may in its sole
election decide to provide an architect’s certificate in respect
of the rentable area of the premises and should such
measurement vary by 10% (Ten Percent) or more from the
area stipulated in Item 11 of the Schedule, then an
adjustment shall be made to Items 3,4,5,11,18 and 19 of
the Schedule and confirmed by way of an Addendum to this
Agreement.
3. LEASED PREMISES
3.1 This Agreement shall endure from the commencement date
to the expiry date as recorded in Item 13 and 14 of the
Schedule;
3.2 If the premises are not ready for occupation by the Lessee on
the commencement date of this Agreement for any reason
whatsoever, the Lessee shall have no claim for cancellation of
this Agreement or for damages or any other right of action
against the Lessor or its agents. In such event the Lessee
shall accept occupation of the premises on the date on which
it becomes available, which date shall be the commencement
date of this agreement. In the event of the commencement
date being the later date, the commencement rental shall
escalate at the rate of 1% per month, or part thereof,
compounded, from the commencement date, until the actual
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 10 of 10
commencement date of the lease, when the escalated
commencement rental shall be fixed for the 1st year of the
lease;
3.3 Should the premises however not be available for shop fitting
within 6 (six) months of the commencement date, either
party shall be entitled to cancel this Agreement of lease by
giving the other party at least 1(one) calendar month’s
written notice. Neither party shall have any claim against the
other party as a result of such cancellation;
3.4 The Lessee shall (where applicable) be entitled to commence
with shop fitting in accordance with Annexure ”D” and
other preparations for the purpose for which the premises are
let for the number of days as recorded in Item 12 of the
Schedule prior to the commencement date, being the
beneficial occupation period. All the provisions of this lease
will apply mutatis mutandis during the beneficial occupation
period, save that no rental and operating costs will be
payable. The Lessee shall also be liable for all consumption
charges during the beneficial occupation period, including but
not limited to electricity, water, security, cleaning and refuse
removal;
3.5 If the Lessor is unable to give the Lessee beneficial
occupation of the premises as stipulated herein, for any
reason whatsoever, the Lessee shall have no claim for
damages or right of cancellation and shall accept beneficial
occupation on such later date on which the premises are
available
4. RENT AND TURNOVER RENT
4.1 For and in consideration of the use of the premises, the
Lessee shall pay to the Lessor monthly in advance on or
before the first day of each month, from the commencement
date, or the date trading commences from the premises,
whichever is the earlier, the monthly rent, operating cost,
monthly parking rental and all other charges as stipulated in
this Agreement, in south African currency, free of any
deduction or set-off whatsoever and free of bank charges
and/or commission by way of electronic transfer into an
account as directed by the Lessor in writing from time to
time;
4.2 The Lessee shall, if so requested at any time or from time to
time by the Lessor, execute promptly any and all agreements
and authorizations and supply any and all information
necessary to provide for an automatic transfer by electronic
or other means from the Lessee’s bank account to the
Lessor’s account in the bank designated by the Lessor, of all
amounts payable by the Lessee to the Lessor in terms of this
lease. The Lessee shall do everything necessary to ensure
that any and all such payments will be received by the
Lessor’s bank by the due date thereof.
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 11 of 11
4.3 Notwithstanding the provisions of this Agreement, if the
commencement date is not the 1st(First) day of a calendar
month, a pro rata amount of rental and other charges shall
be payable by the Lessee;
4.4 During the beneficial occupation period, the Lessee will not
be liable to the Lessor for the payment of monthly rent or
operating cost, but shall be liable for all other charges and
imposts in terms of this Agreement;
4.5 The rent payable by the Lessee during the period of this
Agreement shall be the greater of:
4.5.1 the monthly rent as specified in Item 3.1 of the schedule;
and
4.5.2 the turnover rent, based on the Lessee’s net turnover, as
defined in clause 4.7 and calculated in terms of this clause
4;
4.6 The percentage of annual turnover rent payable by the
Lessee for the lease year is recorded in Item 16 of the
Schedule;
4.7 “Net turnover” shall mean:
4.7.1 the gross price (excluding general sales tax, value added tax
or any similar substituting tax) of all goods, lay buys and
services sold or distributed (also staff or for the account of
other retail outlets of the Lessee) on or from the premises by
the Lessee or any other person.
4.7.2 Plus recoveries of bad debts previously written-off
4.8 The additional rental shall be payable bi-annually. The first
payment based on un-audited monthly turnover statements
for the preceding 6(six) months shall be made no later than 5
(five) months before the Lessee’s financial year-end. The
second payment, based on audited financial statements, shall
be made within 3(three) months after the Lessee’s financial
year-end, and shall include any balance that may be
outstanding from the first bi-annual payment. In the event
that this lease is terminated for any reason whatsoever all
outstanding turnover rental shall immediately become due
and payable.
4.9 The Lessee shall not be entitled to change its financial year-
end without the prior written consent of the Lessor having
first been obtained.
4.10 Within 3(Three) months after the end of each financial year-
end of the Lessee, the Lessee shall deliver to the Lessor an
audited statement of the turnover in respect of such financial
year together with payment as recorded in 4.8;
4.11 The Lessee shall keep all the books and accounting records of
the Lessee for a period of 36 (Thirty six) calendar months
after the financial year end, available for inspection by the
Lessor’s auditors. It will be regarded as a material breach of
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 12 of 12
this Agreement should the Lessee not comply with this
requirement;
4.12 The Lessor shall at reasonable intervals be entitled to audit at
the Lessor’s sole cost, the monthly/annual turnover
statements either by the Lessor or by the auditors appointed
by the Lessor. The Lessee shall give the Lessor or its
auditors, all information, and explanations as they may
require. Such audits shall be limited to the determination of
the monthly/annual turnover and shall be conducted during
normal business hours at the premises.
4.12.1 If it shall be determined as a result of such audit, that there
has been a deficiency in the payment of rent, then such
deficiency shall immediately become due and payable, with
interest at the applicable rate, reckoned from the date upon
which the said payment should have been made, to the date
of the actual payment thereof, both days inclusive, together
with the reasonable cost of the audit.
4.13 Notwithstanding the aforegoing, the Lessee shall submit to
the Lessor a written statement of monthly turnover
(unaudited) within 21 (twenty one) days of the end of each
calendar month, showing the net turnover during the
preceding month;
4.14 The Lessor or its agents shall be entitled to inspect the
Lessee’s financial statement relating to turnover and have the
right to make reasonable copies and extracts there from.
4.15 All amounts payable by the Lessee in terms of this Agreement
are stipulated net of Value Added Tax (VAT). The Lessee
shall, in addition to any other amounts payable, pay any VAT
or any other tax, which may be imposed by any authority
pursuant to this Agreement;
4.16 Unless otherwise stated by the Lessor in writing, the receipt
by the Lessor or its agents of any rent or other payment shall
in no way whatsoever prejudice or operate as a waiver,
rescission or abandonment of any cancellation or right of
cancellation effected or acquired prior to such receipt. The
Lessor shall be entitled in its sole and absolute discretion to
appropriate and re-appropriate any amounts received from
the Lessee or amounts to which the Lessee is entitled
towards the payment of any cause of debt or amount owing
by the Lessee to the Lessor whatsoever.
4.17 The Lessor shall be entitled at any time and without assigning
any reason therefore, to refuse to accept any payments made
by the Lessee in terms hereof, otherwise than in cash.
5. DEPOSIT
5.1 The Lessee shall on signature hereof pay cash or present an
acceptable Bank Guarantee as per Annexure “E” to the Lessor
in the amount as stipulated in Item 5 of the Schedule, as a
rental deposit equal to two times the monthly rent including
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 13 of 13
VAT for the last full month of this agreement in addition to all
other amounts due in terms of this Agreement, which amount
the Lessor or its agent, shall retain as security for the due
compliance by the Lessee of its obligations arising from the
Agreement and/or occupancy of the premises, and the Lessee
shall not be entitled to any interest on such deposit held by
the Lessor;
5.2 Should the Lessee not furnish such acceptable Bank
Guarantee at the date of signature of this Agreement, the
rental deposit shall notwithstanding what is recorded
elsewhere, be payable in cash. This provision is for the
benefit of the Lessor and may be waived by it in writing at
any time;
5.3 If the Lessee provides a cash deposit, such deposit shall be
retained by the Lessor until 3 (Three) months after the expiry
of this Agreement and the Lessee having vacated the
premises and the complete discharge of the Lessee’s
obligations to the Lessor arising from this Agreement
whereafter the deposit, less amounts utilized by the Lessor to
fulfill the Lessee’s obligations, shall be paid to the Lessee
without interest;
5.4 If the Lessee provides a Bank Guarantee, such Bank
Guarantee shall expire 3 (Three) months after the termination
date of this Agreement after which such Bank Guarantee shall
be revoked;
5.5 Notwithstanding the above, should the Bank Guarantee or
deposit be inadequate to meet all the Lessee’s obligations to
the Lessor in terms of this Agreement, the Lessee shall be
liable and furnish to the Lessor any cash shortfall in the
deposit or Bank Guarantee as the Lessor may require in
writing and as provided for in Item 5 of the Schedule;
5.6 The Lessor will be entitled, upon presenting the Bank
Guarantee for payment and after receiving the guaranteed
amount from the applicable institution, to appropriate such
amounts received from the Bank as a deposit, alternatively as
the Lessor may deem fit for the Lessee’s obligations in terms
of this Agreement and the Lessee shall pay any shortfall as
stipulated in 5.5 above.
5.7 The electricity deposit shall be as set out in Item 21 of the
Schedule. The Lessor shall have the right to apply the
electricity deposit as a contribution towards payment of any
amount, which the Lessor may be obliged to pay to the local
authority as a deposit for the supply of electricity to the
building. On termination of this lease, the deposit shall be
refunded to the Lessee, provided that the Lessor shall be
entitled to discharge therefrom any charges payable by the
Lessee in respect of the use of electricity, which remains
unpaid.
5.8 The refuse deposit shall be as set out in Item 20 of the
Schedule. On termination of this lease, the deposit shall be
refunded to the Lessee, provided that the Lessor shall be
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Jubilee Mall Lease Agreement - 17/2/10 Page 14 of 14
entitled to discharge therefrom the cost of a wheelie bin if the
Lessee does not return it in a good serviceable condition.
6 ASSESSMENT RATES AND OTHER EXPENSES
6.1 The Lessee’s share of assessment rates payable shall be the
amount as stipulated in Item 19 of the Schedule per
month, excluding VAT, as well as a pro rata share as
stipulated in Item 18 of the Schedule of any increase or
decrease thereon payable upon demand, which shall escalate
or be reduced when the assessment rates are increased by
the local authority;
6.2 The Lessee shall be liable for its pro rata share of:
6.2.1 any new tax or levy introduced by any local or other authority
in respect of and/or relating to the premises, building or
signage erected thereon;
6.2.2 any levies of whatever nature be imposed in respect of the
ownership of immovable property or in respect of services
supplied to occupiers of immovable property.
7. FEES AND CHARGES PAYABLE BY THE LESSEE
In addition to the monthly rent, operating cost, monthly
parking rental and assessment rates, the following monthly
charges, excluding VAT, will be for the Lessee’s account:
7.1 Where any fees, rates and charges for which the Lessee is
liable in terms of a contract with the local authority/supplier
are paid by the Lessor, the Lessee shall make repayment to
the Lessor immediately upon demand at the place where the
rental is payable;
7.2 An electricity and water consumption deposit, equal to an
amount of 2 (Two) months’ consumption shall be payable
upon demand from the Lessor in the event of the Lessee
failing to make prompt payments on the due dates in terms
of this clause, and which deposit shall be held by the Lessor
on the same terms as recorded in clause 5.1 above;
7.3 The Lessee’s share of refuse, sewerage and effluent disposal
charges levied against the property calculated in accordance
with the metered water consumption for the premises, if
metered, and if refuse, sewerage and effluent disposal
charges are charged on such basis by the local authority,
alternatively the Lessee’s pro rata share of such charges;
7.4 The Lessee’s share of (which for purposes of clause 7.4 shall
exclude from the calculate of pro rata the rentable area of
any Lessee exceeding 2000m2 (two thousand square meters)
which may utilize its own refuse collection disposal and
compaction) refuse collection, disposal and compaction of its
refuse and the cost of refuse removal bins and other
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 15 of 15
containers that may from time to time be specified by the
local authority or the Lessor;
7.5 The Lessee shall be liable to the Lessor for all charges in
respect of electricity and water actually consumed upon the
premises itself including external signage and air-conditioning
based on consumption as metered and calculated according
to official tariffs including any additional supply charges,
applicable on the Lessee, on the supply authority concerned,
including electricity and water consumed within the common
area or areas of the Property, including water and electricity
consumed by signage and air-conditioning serving the
common area on a pro rata basis;
7.6 The charges referred to in clause 7.5 above shall include
charges for reading and servicing such sub meters and shall
be payable be the Lessee in arrear, upon receipt of an invoice
reflecting such charges;
7.7 Should the Lessee fail to pay the charges for electricity within
7 (Seven) days of written demand, then, without prejudice to
any other rights it may have, the Lessor shall be entitled to
terminate the supply utility services to the Lessee without
further notice, and shall not be liable for any damages,
including consequential damages, that may be sustained by
the Lessee;
7.8 Any electrical charges, refuse removal, water or any such
charges shall be paid for by the Lessee from the beneficial
occupation date, whether or not the Lessee trades from the
premises;
7.9 The Lessee shall be liable for the water and electricity
consumed by an air-conditioning unit and fire protection
equipment as metered, if dedicated to the premises. However
should the air-conditioning unit service the premises but also
be shared by any other premises in the building, then the
metered charges shall be divided by the area of the premises
expressed as a percentage of the total area which such air
conditioning serves. If not metered, the Lessee’s share of
such water and electricity consumption as calculated as a
percentage of the total area which the air-conditioning unit
serves. The installation of sub-meters shall be at the Lessor’s
discretion and at its costs;
7.10 The Lessee shall furthermore be liable for the costs of
purchase, installation, maintenance and repair of any and all
hand held fire fighting equipment and hose reels in its
premises;
7.11 The Lessee shall furthermore be liable for he costs of
repairing, servicing and maintaining any dedicated air
conditioning unit, alternatively in case of a shared unit the
costs divided by the area of the premises expressed as a
percentage of the total area the air conditioning unit serve,
excluding common areas.
7.12 Should the Lessor agree in writing and in its discretion to
provide additional/alternative standby electricity supply to
satisfy the Lessee’s requirements, the Lessee shall bear all
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cost of supply, installation, consultant’s fees, maintenance,
consumables including fuel charges and metering thereof.
Should the Lessee wish to provide its own standby electrical
supply, it will be subject to the Lessor or its agents or
consultants prior written approval and the Lessee shall use
the Lessor’s approved contractors for this purpose.
7.13 Should any future legislation introduce a penalty or an extra
charge or levy on electricity and/or water consumption based
on usage of electricity and/or water or as directed in such
legislation, the, shall be entitled to effect the necessary
replacement or Lessor shall be entitled to recover such
penalty or extra charge or levy from the Lessee if such
Lessee’s usage of electricity and/or water results in a penalty
or extra charge or levy from the Lessee if such Lessee’s
usage of electricity and/or water results in a penalty or extra
charge or levy. A certificate issued by the Lessor shall
constitute prima facie proof of the Lessee’s liability and the
amount stated therein.
8. MARKETING
8.1 The Lessor shall establish a marketing fund, or similar body,
for the marketing and promotion of the building of which the
premises form part of and the Lessee shall pay monthly, upon
being invoiced, an amount as stated in Item 4 of the
Schedule.
8.2 The Lessee undertakes to comply with the rules and
regulations of the marketing fund, or similar body.
9. USE OF PREMISES
9.1 The Lessee shall use the premises, strictly limited to the
purpose set out in Item 8 of the Schedule and
acknowledge that it shall not have an exclusive right to any
particular type of business, or portion thereof, being
conducted in the building. The Lessor shall be entitled to let
premises in the building to third parties that may conduct the
same or similar business as that of the Lessee;
9.2 The Lessee shall utilize it for no other purpose whatsoever
without the prior written consent of the Lessor being
obtained, which consent shall also be obtained for installation
and operation of all forms of vending machines, whether
inside or outside the premises;
9.3 The Lessor does not warrant that the premises are suitable
for the purpose of the Lessee nor that it will be granted any
license or consent in respect of its business or that such
license or consent will be renewed or extended.
10. LESSEE’S GENERAL OBLIGATIONS
10.1 The Lessee shall comply with all laws, by-laws and
regulations relating to occupiers of business premises for the
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conduct of any business carried on in the premises, including
but not limited to obtaining an occupation certificate from the
local authority at its cost. The Lessee shall not contravene or
permit the contravention of any of the conditions of the title
under which the property is held by the Lessor or any of the
provisions of the town planning or similar scheme applicable
to the property and not to do or permit to be done in or
about the premises anything which may be or cause a
nuisance or disturbance to other occupants of the building, or
occupiers of neighbouring premises. Nothing in this
Agreement shall entitle any Lessee or person or other party
to oblige the Lessor to take action in terms of this clause, nor
shall any Lessee or person or other party derive any rights
from the provision of this clause;
10.2 If the Lessee is a restaurant or fast food outlet:
10.2.1 the Lessee will install and maintain an extraction system in
the food preparation area with filters, and shall maintain
these filters, to reduce odours and smoke to a minimum,
together with a grease trap or similar equipment leading to
the drainage in the premises, and he Lessor will have the
right to order the Lessee, at the Lessee’s cost, to change any
system to meet the requirement of any authority, including
but not limited to the Department of Agriculture,
Conservation and Environment;
10.2.2 the Lessee acknowledges that it may be subject to a hygiene
inspection similar to the hygiene inspection conducted by the
Department of Health at similar outlets, on such intervals at
the Lessor may determine in its sole discretion [DRAFTING
NOTE: Alternatively we can allow for such audit every
three months] by an independent service provider
appointed by the Landlord from time to time;
10.2.3 the Lessee shall participate in any such health, rodent or
hygiene audits undertaken in respect of food operations
conducted from the premises and the Lessee shall be obliged
to contribute to the cost of these inspections as well as any
cost incidental to the implementation of such audits. The
Lessee shall furthermore at its own cost carry out in the
premises any remedial work or improvement/s brought to
light by such audit and failure to do so will constitute a
material breach of this lease;
A certificate issued by the manager of the independent
service provider referred to in clause 10.3 above, whose
appointment and authority need not be proved, shall
constitute prima facie proof of the level of health, rodent or
hygiene. In the event of a Lessee scoring lower than
____%, a further test will be conducted by the independent
service provider, the cost of which will also be borne by the
Lessee. Should a Lessee score lower than ___% on more
than __ successive tests, the Lessor shall be entitled to
cancel the Agreement forthwith.
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10.3 The Lessee shall have the reasonable use of common areas,
service roads, loading facilities, toilets and conveniences
provided;
10.4 The Lessor shall have the right from time to time to make or
vary house rules, as initially set out in Annexure “E”, that
govern the relationship between the Lessees and generally
the use of the building and common areas and the Lessee
undertakes to abide by and comply with these rules;
10.5 The Lessee shall ensure that all activities on the premises
comply in all respects with the Occupational Health and
Safety Act No. 85 of 1993, as amended (or its successor) and
the regulations found there under;
10.6 The Lessee shall not contravene or allow the contravention of
the Tobacco Products Control Act 83 of 1993 (including
regulations there under) by members of its staff or any
person on the premises. The Lessee further indemnifies and
holds the Lessor harmless against any penalty imposed by
any local, provincial, national, or other authority as a result of
the Lessee’s failure to comply with the provisions of such Act
and/or the regulations;
10.7 The Lessee shall be obliged to erect signage at the premises
subject to the prior written approval of the Lessor and shall at
all times comply with the requirements of the Lessor as set
out in Annexure “D” hereto. The Lessee will not be granted
beneficial occupation of the premises until such written
approval for its signage has been obtained from the Lessor;
10.8 The Lessee shall furthermore not commence trading from the
premises until the approved signage has been installed. The
Lessor may in its sole and absolute discretion waive this
condition and allow the Lessee to take beneficial occupation
of the premises and the Lessee will be obliged to take
occupation of the premises. The Lessee shall not place any
advertising signs or other matter on the windows or doors or
outside the premises without the Lessor’s prior written
consent. Should such consent be given, the Lessee shall
maintain such signs in good order and condition and remove
it upon vacating the premises and reinstate the premises and
any other area of the building where the sign was displayed;
10.9 The lessee is obliged at its own cost and risk to submit the
internal layout plans and required applications of the
premises to the local and/or licensing authorities for all the
necessary approval. The Lessor may refuse beneficial
occupation to the Lessee until such plans have been
approved by the local authority, and written proof of such
approval is submitted to the Lessor, without prejudice to the
rights of the Lessor.
10.10 The Lessee shall be responsible, at its own cost, to make all
its own arrangements for the allocation, installation and
commissioning of telephone and/or data lines to the
premises.
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10.11 The Lessee:
10.11.1 at its own cost, hereby promises and undertakes to care for
and maintain the premises including shop fronts, fittings,
doors, door mechanisms, equipment and appurtenances of
whatsoever nature for the duration of this Agreement and on
the termination or expiry thereof for whatever reason, to
return and deliver the same to the Lessor as recorded in this
Agreement;
10.11.2 shall be considered to have acknowledged that the interior
and exterior of the premises is in a good state of repair and
condition and all keys, locks, doors, door mechanisms, glass
windows, electrical installation, air conditioning installation (if
any), thermostatic controls and regulators and other
equipment pertaining to the fittings, plumbing installations,
sanitary equipment and appurtences are in a fit state of
repair, unless it notifies the Lessor to the contrary, in writing,
within 14 (Fourteen) days after the date on which the
premises were made available to the Lessee;
10.11.3 shall on termination or expiry of this Agreement return all
keys to the premises which are in the possession of the
Lessee to the Lessor;
10.11.4 furthermore undertakes not to do or permit any act or deed,
which may or shall obstruct the sewerage pipes, water pipes,
storm water drainage systems and/or drains. Should such an
incident occur, the Lessor will be entitled to recover the cost
of unblocking same from the Lessee and should the Lessor’s
contractor find that more than one Lessee has attributed to
the blockage, the costs will be recovered from the responsible
parties on an equal basis;
10.11.5 shall in no way obstruct, or leave any items(s), whether by
storage or otherwise and whether temporarily or permanently
on the pavements alongside the building, staircases,
passages or fire escape routes of the building, staircases,
passages or fire escape routes of the building or the yards or
any other portion of the building or the property;
10.11.6 shall be liable to the Lessor for all costs incurred by the
Lessor in repairing any damage to the building caused by the
Lessee, its employees, agents and/or its invitees;
10.11.7 shall not be entitled to interfere with existing or provide
additional electrical, air conditioning, plumbing and/or other
fittings for the premises without the prior written consent of
the Lessor, which consent shall not be unreasonably withheld
and if such approval is forthcoming, provide such fittings and
install the same at the cost of the Lessee through a
contractor approved by the Lessor;
10.11.8 shall, where the Lessee requires the use of gas apply to the
Lessor’s selected gas supplier for such supply and pay all
charges in connection therewith. All internal reticulation,
including but not limited to connection, gas flow sensor,
solenoid unit and gas detection sensor unit, shall be the
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responsibility of the Lessee at its costs, however at all times
to the approval of the Lessor’s selected gas supplier;
10.11.9 shall endure the window and shop displays are bright, clean
and aesthetically pleasing;
10.11.10 shall during the duration of this Agreement be liable for the
maintenance and upkeep of the plate glass, mirrors and
window panels in or on the premises and shall be obliged at
its expense to replace such plate glass, mirrors and window
panels as may be damaged however and by whomsoever
such damage shall be caused. The Lessee shall insure and
keep insured at its costs throughout the period of this lease,
all of the glass window panels and shop fronts in or on the
premises, with an insurance company approved by the Lessor
and shall cede such policy to the Lessor. The Lessee shall
make timeous payment of the insurance premiums and
exhibit proof of payment to the Lessor on demand;
10.11.11 shall maintain a high degree of lighting so as to ensure the
premises are inviting to customers;
10.11.12 shall ensure that the premises are adequately stocked and
properly staffed and shall not obscure windows in any
manner;
10.11.13 shall pay for the replacement and repair of any lamps,
starters, ballast and any lamps used in the premises and shall
not interfere with the electrical installation or any other
installation or equipment belonging to the Lessor and shall
not overload the electrical system or any other service;
10.11.14 shall not attach to the walls, ceilings and/or place on any part
of the premises fittings or equipment which may be too heavy
load therefore;
10.11.15 shall be responsible for maintenance and repair of electrical
installations in the premises, including but not limited to the
distribution board and further more furnish the Lessor with an
electrical compliance certificate if requested in writing by the
Lessor from time to time, and should the Lessee fail to do so
the Lessor shall be entitled but nt obliged to instruct its agent
to obtain such certificate and the Lessee shall be liable for all
costs relating thereto including but not limited to costs in
respect of work to be performed.
10.11.16 Shall provide and use bins or containers for refuse removal at
its costs as may be necessary or specified by the local
authority or the Lessor and keep the bins and containers in a
neat and tidy condition and replace them from time to time;
10.11.17 In the event that the nature of the business conducted in the
premises by the Lessee include the handling of fish products
and associated waste, the parties agree that it is material for
the Lessee to:
10.11.18 Immediately vacuum seal and freeze all fish product solid
waste and keep such waste frozen until such time as same is
dispatched as refuse whilst still in a frozen state;
10.11.19 Comply with any arrangement or regulation imposed by the
Lessor and/or any other authority from time to time regarding
health, nuisance or waste disposal.
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10.11.20 Shall not hold or permit to be hold, any auction in or upon
the premises without the Lessor’s prior written consent;
10.11.21 Shall not allow any item on the premises, which may effect
the validation of the Lessor’s insurance policy;
10.11.22 Shall be obliged at the Lessee’s sole cost and expense to take
out, through an insurance company approved in writing by
the Lessor, such Lessee’s public liability insurance for such
amount of cover acceptable to the Lessor and in accordance
with sound business practice and to maintain such insurance
in full force throughout the currency of the Agreement and
furnish the Lessor with proof thereof upon written request;
10.11.23 Shall under no circumstances be entitled to cancel this
Agreement or have any claim or right of action whatsoever
against the Lessor for any damages, loss or otherwise, nor be
entitled to withhold or defer payment of rent by reason of the
premises or any appliances or other installation, fittings and
fixtures in the premises or the building being in a defective
condition or falling into disrepair or any particular repairs not
being attended to by the Lessor, or for any other reason
whatsoever. The Lessee shall not have any right of
cancellation or claim for damages, abatement of rent or
otherwise against the Lessor by reason of the amenities in or
on the premises being out of order for any reason
whatsoever;
10.11.24 Shall have no right to entry to the roof or machine rooms of
the building and operating areas of the Lessor;
10.11.25 Shall have the right of reasonable use, having regard to the
right of other Lessees, of the common area provided by the
Lessor on the property and in the building;
10.11.26 Shall ensure that vehicles of its employees and agents are
parked in the designated areas;
10.11.27 Shall expedite the loading and unloading of vehicles to ensure
that vehicles do not wait in the unloading area for
unreasonably long periods or obstruct the free flow of traffic,
the entrances or exits of the driveways. Vehicles shall not be
parked a loading zone except for the loading and unloading
of goods;
10.11.28 Shall not be entitled to exclusive use of any yards or toilets in
the building;
10.11.29 Shall not obstruct or interfere or tamper with any thermostats
or air conditioning apparatus in the premises;
10.11.30 Be responsible for its own internal security on the premises.
The Lessee shall also be responsible for the management of
cash to and from the premises and hereby indemnifies the
Lessor against any claims of whatsoever nature as a result of
any third party collecting cash from the premises and whilst
in the building and on the property. The Lessee shall ensure
that any third party collecting cash from the premises comply
with the Lessor’s rules and regulations relating thereto;
10.11.31 Shall insofar as possible only unpack stock in the back of the
premises;
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10.11.32 Shall display emergency numbers on the premises as directed
by the Lessor in writing;
10.11.33 Shall be responsible for the repair of any damage to the
interior and exterior of the premises, as a result from burglary
or attempted burglary of the premises;
10.11.34 Indemnifies and holds the Lessor harmless against any
protest picketing, strike, unlawful; occupancy, nuisance and
disturbance carried out by any employees and/or third
party/parties on the premises and/or premises and/or in the
building directed to or relating to the Lessee;
10.11.35 Undertakes to immediately inform the Lessor in writing of any
industrial action and/or process where an order is sought or
applied for in terms of which industrial action would be
allowed in any location other that the premises for example
on the property or in the building. The Lessee shall not
willfully agree to and shall oppose any application in terms of
which any industrial action would be allowed in any location
other than the premises for example on the property or in the
building;
10.11.36 Undertakes to use its best Endeavour’s to limit the noise
levels and nuisance caused by any industrial action by its
employees or directed at the Lessee;
10.11.37 Install, at its own cost, fire extinguishers in the premises, in
accordance with the specifications of the fire department and
maintain same in operative order;
10.11.38 Be obliged to, in the event of the premises being situated in a
new shopping centre to be opened, open its premises for
trading on the opening date of the shopping centre, failing
which the tenant agrees to pay a penalty to the Lessor equal
to twice the pro-rata rental payable for the period it did not
open for trading, in addition to the rental payable and the
Lessee agrees that this penalty is reasonable under in the
circumstances;
10.12 should the Lessee fail to comply with its obligations in terms
of clause 10, the Lessor, without prejudice to any other
remedyrepair at the cost of the Lessee and to recover the
cost from the Lessee.
10.13 The nature of the delivery services in the premises by the
servants of the Lessor or its agents shall be at the sole
discretion of the Lessor. Neither the Lessor nor its employees
shall be liable for the receipt or non-receipt or the delivery or
non-delivery of goods, postal matter or correspondence, nor
shall they be liable for anything which the Lessee or any
employee or any client, licensee, visitors or invitees of the
Lessee may have deposited or left in the premises or in any
part of the building. All goods brought by the Lessee into the
premises, shall be laced there at its sole risk, and no
responsibility whatsoever therefore is undertaken by the
Lessor, its agents or employees.
10.14 The Lessee shall be responsible for repairing, at its own cost,
all damage to the premises and/or building caused by or
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arising from any actual or attempted forced entry, theft,
burglary, or robbery from the premises and hereby
indemnifies the Lessor by whomsoever in respect of loss or
injury caused or arising from aforementioned actual or
attempted forced entry theft, burglary or robbery.
11. ADVERTISING AND SIGNS
11.1 The Lessee shall not be entitled to install any advertising or
other signs (including neon signs) nor any canopies or
awnings (“signs”) on the exterior or roof of the premises or
the building or on the property, without the Lessor’s prior
written consent and in accordance with the Lessor’s
specification.
11.2 During this agreement, the Lessee shall keep and maintain
any signs in good, clean and proper working order and
condition. If the Lessee fails to do so, the Lessor shall be
entitled to enter upon the premises and/or any other part of
the building and to remove the offending sign including
making good any damage caused to the premise and/or
building as a result of such removal at the Lessee’s expense
and to the Lessor’s satisfaction.
11.3 The Lessee shall not be entitled to affix, paint or otherwise
display any signboards, posters, notices or signs of any
nature on any of the windows or doors of the premises
and/or the building without the Lessor’s prior written consent
provided that, if such consent is granted:
11.3.1 all such sign boards, posters, notices and signs shall be
removed by the Lessee upon the expiration or earlier
termination of this lease;
11.3.2 any damage caused to the premises or the building as a
result of any such removal shall be made good by the Lessee
to the satisfaction of the Lessor at the Lessee’s expense;
11.3.3 the maintenance, (including electricity consumed), cleaning
and upkeep of such signboards, notices and signs shall be the
responsibility of the Lessee at all times where applicable to
the Lessor’s satisfaction;
11.3.4 the Lessee shall comply with all requirements of any
competent authority with regard to any advertising or signs
installed by the Lessee;
11.4 The Lessee shall be liable for any electricity consumed by
such signage.
11.5 The Lessor acknowledges that the Lessee may wish to market
its merchandise by way of cellular phone technology such as
short message services / sending (‘SMS”) or multi media
service (”MMS”) or Bluetooth or related technology
(hereinafter referred to as “Cellular Telephone Marketing”).
The Lessee acknowledges that Cellular Telephone Marketing
may however be annoying and inconvenient to the visitors
and patrons to the building. The Lessee accepts that it will
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be allowed to conduct Cellular Telephone Marketing within
the parameters of the building with the content and
frequency always subject to the Lessor’s prior written
approval.
12. LESSOR’S RIGHTS
The Lessor shall have the right:
12.1 at all reasonable times (including business hours to carry out
maintenance work in and on the premises and maintenance
or building work and alterations, whether structural or
otherwise, to the complex and building, and the Lessee shall
have no claim of any nature against the Lessor, nor a
remission of rental and other charges, in respect of any loss,
damage, nuisance or disturbance whatsoever which it may
suffer from or as a result thereof. In exercising this right the
Lessor shall at all times have due regards to the Lessee’s
business and will endeavour that such work does not unduly
interfere with the Lessee’s business and is executed as
expeditiously as may be expected in the circumstances;
12.2 in case of an emergency at any time, alternatively at all
reasonable times inspect the premises and have access
thereto for any other lawful purpose;
12.3 to affix a “TO LET” notice or any other notice required by any
license or by law on the premises 6(six) months prior to the
expiry of this Agreement, and the Lessee shall permit, at all
reasonable times, during the period, any prospective Lessees
to view the premises;
12.4 to, in its absolute discretion, from time to time to alter and
change the size or layout and/or relocate the parking areas
and the common areas in the property or building or
extensions thereof;
12.5 in the event of the Lessee failing to carry out its obligations in
regard to maintenance and/or repairs of the premises, as
provided for in clause 12.1, within 7(Seven) days after being
requested by the Lessor to do so, the Lessor is entitled to
carry out such work and to be reimbursed by the Lessee
forthwith for the actual costs and expenses incurred by the
Lessor in doing so;
12.6 to prescribe, implement and exercise such reasonable
measures in respect of the premises, building and property as
it may in its sole discretion deem necessary to ensure the
safety thereof;
12.7 to cede any of its rights in terms of this agreement to any
third party without the consent of the Lessee;
12.8 to conduct a credit or similar verification or notification on the
Lessee and/or surety/ies from time to time;
12.9 without it in any way diminishing either the Lessee’s
obligations or the Lessor’s rights set out herein, if the Lessee
fails to carry out any of its obligations provided in this
agreement, the Lessor shall be entitled, at its discretion, to
enforce or to carry out the same on behalf of the Lessee and
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to recover from the Lessee, all actual costs and expenses so
incurred by the Lessor
13. LESSOR’S DUTIES
The Lessor Shall:
13.1 clean and maintain the common areas, which will include the
parking areas;
13.2 keep and maintain the exterior walls and roof of the building
in good order, repair and condition, fair wear and tear
excepted;
13.3 insure the building structure against normal eventualities as
ell as take out SASRIA insurance against political riot
eventualities, and shall maintain such insurance policy for the
duration of the Agreement;
13.4 in the event of the premises being served by means of an air
conditioning plant controlled by the Lessor, determines rules
in respect of switching on and off of the air conditioning
plant, as per the trading hours referred to in Item 7 of the
schedule.
13.5 Keep the building and common areas insured against the risk
of fire, explosion, special perils, and riots and maintain such
insurance for the duration of this Agreement.
14. EXEMPTION FROM LIABILITY
14.1 The Lessor shall not be responsible to the Lessee or its
servants, agents, employees, members, clients or invitees:
14.1.1 for any loss or damage caused by or as a result of any fire,
theft, flooding riot, burglary, pilferage or similar cause,
including the cost of malicious damages to the perimeter
walls
14.1.2 for any accident, injury, loss of life or damage caused to them
from whatsoever cause arising, including any failure in the
premises, building and common area (or any part or portion
thereof), through or while upon or while using the staircases,
passages or any other portion of the premises, building or
common areas, whatsoever such accident, injury, loss of life
or damage may be caused, notwithstanding than any
accident, loss of life or damage be occasioned by or arise
from or be accountable to the negligence and/or omission of
the Lessor, its principals, directors, servants or agents. The
Lessee indemnifies the Lessor against any claim of
whatsoever nature which may be made against the Lessor by
any agent or servant, employee, member or invitees of the
Lessee, for any loss or damage to the property of such
claimant or any injuries suffered by such claimant or any
injuries suffered by such claimant in, on or about the
premises, building and common area, provided that the
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liability of the Lessor at all times limited to direct damages
only, shall not be excluded in the event of such a claim
arising from willful conduct; and/or
14.1.3 for any damage which may be done to any of the assets of
the Lessee including stocks-in-trade, fixtures, fittings, books,
papers and otherwise, which may be in the premises, or to
the Lessee, it’s employees, invitees, or licensees, which may
occur in consequence of the overflow of water supply or any
leakage or any plumbing works or any electrical fault or by
reason of any of the elements of the weather or the failure on
the part of the Lessor or its servants to carry out any work
required of any of them in a proper manner or by reason of
any defect in the premises or any portion thereof or any of
the equipment of the Lessor, or as a result of any other cause
whatsoever; and/or
14.1.4 for any damage, whether direct or consequential, or
inconvenience which the Lessee may suffer owing to any
difficulties from time to time in the interruption and/or supply
of electricity, water, gas, air-conditioning or other amenities
or services or the complete cessation of such amenities or
services, nor shall the Lessee be entitled to cancel this
Agreement nor be entitled to an abatement of rent in respect
of any such occurrence, provided that the Lessor shall within
a reasonable time rectify such damage or defective condition,
and such damages or defective condition is not caused by the
Lessor’s willful conduct;
14.2 The provisions of this clause 14 shall apply, notwithstanding
that any loss, damage or injury therein referred to may occur
or be sustained in consequence of anything done or omitted
by the Lessor or any of its directors, servants or agents,
whether negligently or otherwise.
14.3 Should the building still be in the course of construction at
commencement of this Agreement, the Lessee acknowledges
that occupants must necessarily suffer a certain amount of
inconvenience from the building operations and from noise
and dust resulting therefrom as well as from interruption in
the supply of electricity, gas, water, air-conditioning
installation and/or other amenities and that it will have no
claim against the Lessor for compensation or damages or for
a remission of rental and charges by reason of any such
inconvenience during the period of completion.
14.4 The Lessor shall not be liable for the failure of lifts,
escalators, hoists, or by reason of any defect in any
equipment of the Lessor servicing the premises or building
from any cause whatsoever, and the Lessee shall not have
any claim for any damages, nor be entitled to cancel this
Agreement or to an abatement of rent by reason of the fact
that any of the services have failed or been interrupted.
14.5 The Lessee acknowledges that neither the Lessor nor its
agents or employees shall in any way be responsible for any
loss, theft or damage of any kind to any of the Lessee’s
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property whilst contained in the premises. All goods brought
by the Lessee onto the premises shall be placed there at its
sole risk and no responsibility whatsoever therefore is
undertaken by the Lessor or its agents or employees.
15. FIRE HAZARDS
The Lessee shall not at any time bring or allow to be brought
or kept on the premises, any matter or thing or activity or
explosive or highly flammable goods whereby the fire or any
other insurance policy of the building may be liable to
become void or voidable or whereby the premium for any
such insurance may be increased. If the premium for such
insurance is increased as a result of a contravention of this
clause, whether with the Lessor’s written consent or not, the
Lessor, without prejudice to any of its rights hereunder may
recover from the Lessee the amount due in respect of any
additional premium and the Lessee shall pay such amount
immediately on notification from the Lessor or the insurance
company to the effect that such additional premium has been
charged.
16. ALTERATIONS, ADDITIONS AND REINSTATEMENT
16.1 Should any competent authority in respect of the grant or
renewal of any licenses required by the Lessee to carry on
the business for which the premises shall be altered, added to
or renovated, the Lessor shall not be obliged, but the Lessee
shall be obliged at its own expense to carry out such
alterations, additions or renovations provided that the
Lessor’s prior written consent, which shall not be
unreasonably withheld, is obtained and if the Lessor so
requires, the work must be carried out by a contractor
approved by the Lessor and under the supervision of an
architect approved by the Lessor, with all costs for the
Lessee’s account;
16.2 The Lessee shall not effect or cause to allow to be effected to
the premises or the building any alterations or additions,
whether external, internal, structural, non-structural or of any
other nature whatsoever, without the prior written consent of
the Lessor;
16.3 Should the Lessee request the Lessor in writing to carry out
to the premises or the building any alterations or addition,
then it shall be in the sole discretion of the Lessor whether or
not to agree to such request and should the Lessor so agree,
the work shall be effected within a reasonable period from
the date of receipt by the Lessor of such written request,
provided that
16.3.1 the plans and specifications for the work shall be prepared by
the Lessor’s architect and submitted to the Lessor for
approval, which approval shall not be unreasonably withheld;
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16.3.2 the work shall be carried out by the Lessor or by such
contractor(s) as may be nominated by the Lessor under the
supervision of the Lessor’s architect and/or other professional
consultancy(s);
16.3.3 the professional fees and charges of the Lessor’s architect,
quantity surveyor, consulting engineer and/or other
professional consultant(s) shall be borne by the Lessee;
16.3.4 should the Lessor so require, the Lessee shall pay to the
Lessor prior to the commencement of the alterations or
additions an amount equivalent to the estimated cost of such
alterations or additions, as determined by the Lessor in
consultation with the Lessor’s architect, quantity surveyor,
consulting engineer and/or other professional consultant(s)
subject to adjustment between the parties after completion of
the alterations or additions; and
16.3.5 if the Lessee is not required to pay the estimated cost of the
alterations or additions to the Lessor in advance, then the
Lessee shall within 7 (seven) days after the issue of such
certificate by the Lessor’s architect or quantity surveyor pay
to the Lessor an amount equal to the amount certified in the
relevant certificate.
16.3.6 The Lessee shall not later than 30 (Thirty) days after the date
of making any changes or additions to its electrical
installation in the premises from the point of control, deliver
to the Lessor an electrical Compliance Certificate which
certificate shall be issued in accordance with the
requirements of the applicable legislation, or of the
competent authority as the case may be.
16.4 The Lessee shall pat to the Lessor on demand any additional
municipal rates and taxes levied from time to time during the
currency of this Agreement in respect of or by virtue of the
additions and alterations effected in terms of this clause and
in the event of the premiums payable by the Lessor in respect
of any insurance policy relating to the building being
increased by reason of any such alterations and additions.
Then, as and when the Lessor shall be obliged to make
payment of such additional premiums during the currency of
this Agreement, the Lessee shall be obligated to refund to the
Lessor the amount of such increase(s);
16.5 The Lessee shall on cancellation, or prior to termination or
expiry of this Agreement, at the Lessee’s cost and expense
reinstate the premises in;
16.5.1 the same good order and condition, as at the commencement
date; alternatively
16.5.2 a basic condition of a screed floor, white painted walls,
standard ceiling; alternatively
16.5.3 any combination of the conditions described in clauses
16.5.1 and 16.5.2 as directed by the Lessor in writing;
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in all instances, fair wear and tear expected, and to make
good and repair at the Lessee’s cost and expense any
disrepair, damage or breakage, or at the Lessor’s written
option, to reimburse the Lessor for the cost of so doing
and/or the cost of replacing any broken or damaged articles;
16.6 The Lessee shall have no lien or claim of whatsoever nature
against the Lessor for the value or cost of any alterations or
additions or other improvements effected to the premises of
the building or the property, whether or not such alterations,
additions or improvements are effected at the cost of the
Lessee, and if the Lessor does not direct otherwise in terms
of clause 16.5, the Lessor will become the owner thereof
upon installation thereof;
16.7 The Lessee shall not be entitled, either during or after the
termination or expiry of this Agreement, to remove any
alterations, additions or other improvements to the premises,
the building or the property, unless directed by the Lessor in
terms of clause 16.5.
17. SUBLETTING, CHANGE IN CONTROL AND SALE OF
BUSINESS
17.1 The Lessee shall not be entitled to sublet or grant possession
or occupation of the whole or any part of the premises to any
other person, save as follows:
17.1.1 the Lessee shall apply to the Lessor in writing for its consent
to the subletting of the premises or part thereof giving, in
regard to the proposed sublease, the name of the sub Lease,
the guarantor/s, if any, of the sub Lessee’s obligations, the
proposed date of commencement (which shall not be later
than 60 (Sixty) days from the date on which the Lessor
receives the Lessee’s application), the duration of the
proposed sub-lease, the exact premises and the rental and
any other considerations payable thereunder;
17.1.2 the Lessor, at its option, may either consent to the sub-lase
in which case;
17.1.2.1 the Lessee may on receipt of written confirmation by the
Lessor sublet the premises or part thereof as the case may be
in accordance with the written application submitted to the
Lessor in terms of clause 17.1.1 hereof;
17.1.2.2 the Lessee shall be obliged to account to and pay over on
demand to the Lessor, any profit made arising out of any
sub-lease entered into in respect of the premises;
17.1.2.3 the Lessee shall not give up occupation or possession of the
premises or any portion thereof to any person whether as
licensee, agent, occupier, custodian or otherwise, without the
Lessor’s prior written consent.
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Or alternatively the Lessor may give the Lessee written notice
of its intention to enter into a direct written lease with the
proposed sub-lessee, in which event on the commencement
date of the new written lease entered into between the
Lessor and the proposed sub-lessee this lease shall be
cancelled and of no further force and effect. This cancellation
shall, however, in no way detract from the Lessor’s right to
recover from the Lessee any amounts which have arisen in
terms of this lease and which are still outstanding at the date
of such cancellation or to enforce any obligations arising
before the cancellation
17.2 The receipt by the Lessor of rent or any other payment from
any party other than the Lessee shall not be deemed to be a
consent by the Lessor to any of the transactions referred to in
this clause 17, nor relieve the Lessee of any of its
obligations.
17.3 The Lessee shall not, without the Lessor’s prior written
consent, cede, assign, transfer, alienate, or otherwise dispose
of its rights and/or obligations under this lease or pledge or
hypothecate this lease.
17.4 Notwithstanding the provisions stipulated in clause 17,
should the Lessee formally, request to assign or sub-let, the
Lessor, at its option, may treat this as an offer by the Lessee
to terminate this lease on 3 (Three) calendar month’s notice
commencing from the first of the month following that in
which the request to sub-let is made, and the Lessor shall
have a period of 30 (Thirty) days (during which the offer shall
be irrevocable) in which to accept the offer.
17.5 If the Lessee is a company, no shares therein shall be
transferred from its shareholders, nor may any shares be
allotted to any person other than such shareholders, without
the Lessor’s prior written consent which, in the case of an
allotment or transfer of shares which will still leave the
control of the Lessee with the existing shareholders as at the
date of signature hereof, or of a transfer of shares to a
deceased shareholder’s heirs, shall not be unreasonably
withheld. Furthermore, if the Lessee is a company, the shares
of which are listed on the JSE Securities exchange (or any
other recognized stock exchange), allow such shares to be
de-listed or trading in such shares suspended without the
prior written consent of the Lessor, which consent shall not
be reasonably withheld. Similarly, if the Lessee is a close
corporation, no member’s interest in such close corporation is
to be allotted to any person other than another member of
the close corporation without the Lessor’s prior written
consent. Any transfer or allotment of shares effected without
such consent shall constitute a breach of the terms by the
Lessee, justifying cancellation of the lease by the Lessor.
17.6 Should the Lessee anticipate the possible sale of its business
or any portion thereof, and prior to entering into or
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concluding any Agreement with a potential purchaser, the
Lessee shall notify the Lessor in writing, which notice shall
contain the following minimum information:-
17.6.1 The name and identity number of the potential purchaser;
17.6.2 The name and registration number of the proposed purchaser
in the event of a juristic person
17.6.3 The proposed sureties and their identity numbers;
17.6.4 The experience, curriculum vitae and resume of the potential
purchaser of any individuals that will conduct the business;
17.6.5 The amount of Lessee installation allowances that was
granted to the Lessee by the Lessor;
17.6.6 A copy o the proposed Agreement of Sale.
17.6.7 The surety(ies) to this Agreement shall remain liable, and
where necessary shall be resigned to record their liability for
the duration of the unexpired portion of the Agreement of
Lease, despite and notwithstanding an approval of the sale of
the business;
17.7 In the event of the Lessee having received an installation
allowance from the Lessor, the installation allowance will be
repaid to the Lessor on the following formula:
Amount of Allowance x Unexpired Period of The Initial Period
The Initial period
=Amount to be repaid by the Lessee to the Lessor.
Such repayment shall be payable upon demand from the
Lessor;
17.8 The Lessee shall notify the “prospective purchaser” of the
content of this Agreement and specifically but not limited to
the usage clause and shall furthermore make no
representation that such usage clause or any other term of
this Agreement may alter or be amended or that such
amendment shall be favorable considered by the Lessor.
18. PREMISES TO BE KEPT OPEN
18.1 The Lessee shall, and it is a material term of this Agreement,
keep the premises open continuously during business hours
and carry on its business during the whole term of this
Agreement, subject to its right to close the premises on
special occasions or when general conditions render it
reasonably appropriate to do, with the written consent of the
Lessor. The Lessee agrees to the minimum business hours as
set out in Item 7 of the Schedule;
18.2 The Lessee shall ensure that it commences trading on the
opening date of the centre.
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19. PARKING
19.1 The allocation of all parking area/s and the hours relevant to
such parking shall be in the sole and absolute discretion of
the Lessor, notwithstanding the fact that specific parking bays
have been allocated.
19.2 The Lessor does not warrant or undertake that the local
authority or itself will not charge any levy for such parking.
19.3 The Lessor shall at times have the right to control the parking
area/s of the building and to change the allocation thereof
and arrangements in respect thereof as to restrict parking by
Lessees and their officers, agents and employees, to
temporarily close all or any portion of the parking areas, to
discourage and restrict non-customer parking and generally
control and do all things, which in the judgment of the
Lessor, shall be advisable and/or beneficial to the Lessees of
the building as a whole and/or for the improvement,
convenience and use thereof by Lessees and their customers.
The Lessor shall also be entitled to make and enforce rules
and regulations with regards to the proper operation,
maintenance and control of such parking area/s and
driveways.
19.4 In addition to the provisions of clause 19.3, the Lessor has
allocated a designated area for parking by Lessees and their
officers, employees and agents. The Lessee shall comply
with all the rules and regulations applicable to such Lessee
parking area.
19.5 The Lessor lets to the Lessee, which hires from the Lessor the
number of parking bays set out in Item 3.2 of the
Schedule on the following terms and conditions:
19.5.1 The Lessee shall pay the basic monthly rental for the parking
bay/s as set out in Item 3.2 of the Schedule monthly in
advance to the Lessor at the address set out in Item 1 of
the Schedule.
19.5.2 The allocation of any parking bay/s allocated to the Lessee
will be at the sole and absolute discretion of the Lessor or its
agents and may be changed or re-allocated from time to
time, or new parking bay/s may be allocated to the Lessee.
19.5.3 All vehicles driven or parked in the parking areas on the
property by the Lessee or its nominees shall, whether they
are the property of the Lessee or not, be driven or parked at
the Lessee and his nominee’s sole risk and responsibility and
no liability of any nature whatsoever will attach to the Lessor
and/or its agents and/or its employees for any loss or
damage which may be sustained by or in respect of such
vehicles, its accessories or contents, or for any injury to or
death of any occupant of such vehicles howsoever such loss,
damage, injury or death may be occasioned and whether by
reason of the negligence of the Lessor and/or its agents
and/or its employees or otherwise, while it is thus parked.
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The Lessee indemnifies the Lessor against any such claim
which may be made by any person using the said facilities.
19.6 The Lessee undertakes that:
19.6.1 it will not cause or permit vehicles belonging to or used by it
or its directors, principals, servants licensees or invitees to be
parked in the visitors parking areas or driveways other than
the areas allocated in writing by the Lessor or its agents;
19.6.2 no obstruction shall be placed or be permitted to be placed
by it or its directors, principals, servants, licensees or invitees
in the said driveways and parking areas which may interfere
with their use; and
19.6.3 no vehicles driven by it or its directors, principals, servants,
licensees or invitees shall obstruct the tree flow of traffic, the
entrances or exits of the driveways or the pedestrian
entrances to the building.
19.7 The Lessee and its directors, principals and employees shall
park their cars only in those portions of the parking area
designated for that purpose by the Lessor and the Lessee
shall furnish the Lessor with its and its directors’ principals’
and employees’ vehicles registration numbers within 5 (five)
days of signature hereof and thereafter notify the Lessor of
any changes thereof within 5 (five) days after such changes
occur. If the Lessee, its directors, principals and employees
park their cars on any portion of the property other than the
designated parking areas, then the Lessee hereby authorizes
the Lessor to tow away from the property any od the Lessee’s
cars, or cars belonging to the Lessee’s directors, principals or
employees and/or to attach violation stickers or notices to
such cars.
19.8 Notwithstanding any other provisions hereinbefore contained,
any breach of any of the provisions of this clause 19 shall be
a material breach of this agreement of lease.
19.9 The Lessee shall not be entitled, itself or through its directors,
agents, servants or employees, to utilize the customer
parking.
19.10 The lease of the parking bays contemplated herein is entirely
severable from the remainder of this Agreement.
20. DAMAGE AND DESTRUCTION OF PREMISES
20.1 If the premises are totally or substantially destroyed or
rendered untenantable (the date of such occurrence being
hereinafter referred to as “ the destruction date”), this lease
shall not be cancelled and the Lessor shall have the right,
within 90 (ninety) days after the destruction date, to elect
whether to terminate it or to continue it.
20.2 If the Lessor elects to terminate this lease, or makes no
election within the aforesaid period, this lease shall be
deemed to have terminated on the destruction date.
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20.3 If the Lessor elect to continue this lease, the Lessor shall
rebuild or reinstate the premises, within a reasonable time,
and no rent shall be payable by the Lessee from the
destruction date until occupation of the rebuilt or reinstated
premises is given to the Lessee on the basis that a certificate
by the Lessor’s Architect recording the date on which the
premises are or will be ready for such occupation shall be
final and binding on the Lessee and that the Lessee shall be
entitled to receive at least 30 (thirty) days prior notice in
writing of the date on which the premises will be so ready.
20.4 If the premises are damaged to such an extent that they are,
nevertheless, still tenantable, this lease shall not terminate,
but the Lessee shall be entitled to a reasonable remission of
rent for the period and proportionate to the extent to which
the Lessee is deprived of beneficial occupation of the
premises, and the Lessor shall reinstate or repair the
premises within a reasonable period.
20.5 Should any dispute arise between the Lessor and the Lessee
in regard to the remission to which the Lessee is entitled as
above, such dispute shall be settled by arbitration before an
arbitrator nominated jointly by the Lessor and the Lessee
and, in the event of their being unable or unwilling to agree
thereon, by an arbitrator (with at least 10 (ten) years relevant
experience) appointed by the chairman of the Bar Council of
Pretoria at the request of either party. The said arbitrator
shall be entitled to determine the procedure to be adopted in
connection with the arbitration, it being the intention of the
parties that such arbitration shall be conducted as speedily
and as informally as possible. The costs of such arbitration
shall be paid by the party against whom the decision is
substantially, or on balance, made.
20.6 In the event of the Lessee disputing its obligations to make
payment of rent following any damage to or destruction of
the premises and such dispute being referred to arbitration as
herein provided, the Lessee shall, pending decision by the
arbitrator, continue to pay on due date all rent and other
amounts due by the Lessee in terms of this lease and, in the
event of an arbitration award reducing the amounts which
should have been paid by the Lessee, or deciding that none
was payable during asy period, any excess paid shall be
immediately refunded by the Lessor to the Lessee.
20.7 The provisions of this clause are without prejudice to the
rights of the Lessor, if the damage or destruction or rendering
untenantable is due to or arises directly or indirectly or solely
or partially from any act or omission on the part of the Lessee
or any person for whom the Lessee is in law liable.
20.8 The aforegoing provisions shall apply mutatis mutandis in the
event of expropriation of the land or the building or portion
thereof.
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21. RE-BUILDING
21.1 The Lessor may terminate this Agreement by giving the
Lessee 6 (Six) calendar months’ written notice to such effect
in all or any of the following circumstances:
21.1.1 should the Lessor wish to demolish the building or the
premises; or
21.1.2 should the Lessor wish to reconstruct and/or redevelop
and/or renovate the building or the premises, provided
always that such reconstruction and/or redevelopment and/or
renovation be of a substantial and/or major nature.
21.2 The Lessor shall, however, have the right at any time to
commence the reconstruction’s and/or redevelopment and/or
renovation of the building, other than the premises, and
these operations may proceed while the Lessee is in
occupation of the premises;
21.3 Notwithstanding the implementation of any work as
contemplated in clause 21.2 above, the Lessee shall have
no right to object to such work or to claim a rebate of rental
and costs during the period in which the said work may in
progress, nor shall the Lessee have any claim for damages of
whatsoever nature by reason of the earlier termination of this
Agreement as provided for in clause 21.1 above.
22. LESSOR’S RIGHTS TO REPAIR AND ADD TO
BUILDINGS
22.1 The Lessor shall be entitled at any and all times during the
currency of this Lease to effect any such repairs, alterations,
improvements and/or additions to the premises or the
buildings and/or erect such further buildings on the property
as the Lessor in its discretion may decide to carry out or erect
and for any such purpose to erect or cause to be erected
scaffolding, hoardings, and/or other building equipment and
also such devices as may be required by law or which the
architects may certify to be reasonably necessary for the
protection of any person against injury arising out of the
building operations, in such manner as may be reasonably
necessary for the purpose of any of the works aforesaid, in
at, near or in front of the premises.
22.2 The Lessor shall be further be entitled by itself, its contractors
and sub-contractors, its architect, its quantity surveyors, its
engineers and all artisans and other workmen engaged on
the works to such rights of access to the premises as may be
reasonably necessary for the purposes aforesaid.
22.3 The Lessor shall further be entitled to lead pipes and other
services through the premises should it be necessary to link
such pipes or other services with any other premises,
provided that in doing so the Lessor does not unduly interfere
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with the Lessee’s beneficial occupation of the premises. In
exercising its above rights the Lessor shall use its best
endeavours to cause as little interference as possible with the
Lessee’s beneficial occupation of the premises.
22.4 The Lessee shall have no claim against the Lessor for
compensation, damages, or otherwise, nor shall the Lessee
have any right to remission or withholding of any amounts
payable in terms of this Agreement, by reason of any
interference with its tenancy or its beneficial occupation of
the premises occasioned by any such repairs or building
works as are hereinbefore contemplated or arising from any
failure or interruption in the supply of water and/or electricity
and/or heating and/or gas and/or any other amenities to the
premises or the temporary cessation or interruption in the
operation of any lifts, elevators and hoists in the building.
23. RELOCATION
23.1 The cost of the assets installed in the premises as part of the
Lessee’s fit-out and/or Lessee installation or any subsequent
assets installed in the premises as part of the Lessee
installation on the commencement date or any time
thereafter, minus any contribution thereto or in respect
thereof by the Lessor, as certified by the Lessor’s Quantity
Surveyor from time to time, shall be referred to hereinafter as
the “Lessee Installation Costs”. The Lessee Installation Costs
shall include any labour charges paid by the Lessee in
connection with the fit-out and/or Lessee installation and/or
installation of assets as aforesaid. The Lessee shall furnish to
the Lessor all relevant documentation evidencing the Lessee
Installation Costs.
23.2 The Lessor shall be entitled to relocate the Lessee to other
premises in the building in terms of the provisions of this
clause 23. The Lessor shall only be entitled to act in terms
of this clause 23 in the instance where the relocation to
other premises in the building is due to or arises from a
rebuilding, renovation, re-structuring, alteration, extension, a
change in tenant mix or to a structural change (collectively
“re-structure”) to the building and which re-structure affects
the premises.
23.3 If the Lessor elects to relocate the Lessee to other premises
(“the new premises”) the Lessor shall:
23.3.1 give 4 (four) months written notice to the Lessee of its
intention to relocate the Lessee to the new premises.
23.3.2 Provide the following information to the Lessee:
23.3.2.1 the size of new premises which shall be not less than and not
more than 5% larger or smaller than the size of the existing
premises unless the parties agree otherwise in writing;
23.3.2.2 a detailed explanation of the proposed restructure;
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23.3.2.3 a plan of the building as it will be after the restructure is
completed, including parking garages;
23.3.2.4 the location of the proposed new premises within the plan of
the building;
23.3.2.5 the identity insofar as same is known by the Lessor of the
other Lessees located or to be located in the vicinity of the
new premises;
23.3.2.6 The proposed rental payable by the Lessee to he Lessor in
respect of the new premises, it being recorded and agreed
that the rental payable by the Lessee for the new premises
shall be a fair market rental for the new premises, with the
date of determination at the date the Lessee commences
trading at the new premises (“new commencement date”)
23.3.2.7 The condition of the proposed new premises;
23.3.2.8 The month in which the relocation shall take effect, which
month shall not be earlier than 4 (four) calendar months after
the date of this notice.
23.3.3 endeavours to ensure that, at the cost of the Lessor, the
condition of the new premises prior to shop-fitting by the
Lessee is in accordance with the basic specification which the
location of the proposed new premises fulfills the
requirements referred to in clause 23.3.2.4;
23.3.4 whether the size of the proposed new premises fulfills the
requirements referred to in clause 23.3.2.1;
23.3.5 whether the proposed rental for the new premises is a fair
market rental and if not which rental in proposed by the
Lessee;
23.3.6 whether all relevant information as contemplated in clause
23.3 has been furnished to the Lessee and if not which
information is outstanding;
23.4 after receipt of the Lessee’s objection, the parties shall meet
whenever it is convenient for both parties, but in any event
no later than fifteen (15) days after receipt of the notice of
objection by the Lessor, in order to resolve the dispute(s). If
the parties are unable to resolve the dispute(s), either party
shall be entitled to refer the dispute(s) to an executive
director of a property management company who manages a
minimum of two Regional shopping Centres and has been
doing so for the last five(5) years and who has experience in
regional Shopping Centres (hereinafter referred to as “the
independent director”). The parties shall agree on the
independent director in writing within 7 (seven) days of either
party calling for agreement, failing which the President of the
South African Council of Shopping Centres shall appoint the
independent director. The independent director appointed by
the President of the South African Council of Shopping
Centres shall not be from a property management company
which manages any shopping Centre owned by the Lessor or
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in which the Lessor has in interest. In respect of the
independent director the parties agree that –
23.4.1 The independent director shall decide the dispute(s) as
expeditiously as is reasonably possible;
23.4.2 If the matter in dispute is, or includes, whether the re-
structure fulfills the requirements referred to in clause 23.2,
then in deciding the dispute, the independent director shall in
the first instance determine whether the restructure fulfills
the requirements referred to in clause 23.2, and if it does, if
he shall not refuse the allocation of the Lessee;
23.4.3 If the matter(s) in dispute is, or includes, whether the
requirements referred to in clauses 23.3.1 and/or 23.3.2
are fulfilled, then if the independent director determines that
the Lessor has not fulfilled the requirements referred to in
clause 23.3.1and/or 23.3.2, the independent director shall
be obliged to refuse the relocation of the Lessee to the new
premises;
23.4.4 If the matter(s) in dispute is, or includes, whether the
requirements referred to in clause 23.3.3 are fulfilled, then
if the independent director determines that the Lessor has
failed to substantially fulfill the requirements referred to in
clause 23.3.3, the independent director shall not refuse the
relocation of the Lessee to the new premises but shall make a
determination as to the obligation of the Lessor in order to
procure that the requirements referred to in clause 23.3.3
are fulfilled;
23.4.5 If the matter(s) in dispute is, or includes, whether the
proposed rental for the new premises is a market rental, the
independent director shall not refuse the relocation of the
Lessee to the new premises but shall make a determination
as to the fair market rental be payable by the Lessee in
respect of the new premises which may also include a
determination of the escalation rate despite clause
23.3.2.6;
23.4.6 If the matter(s) in dispute is, or includes, whether the Lessor
has furnished all relevant information as contemplated in
clause 23.3.2 to the Lessee, then the independent director
shall determine what (if any) additional information is
required to be furnished by the Lessor, and upon receipt of
such information by the Lessee, the Lessee shall be entitled
to submit any further grounds of objection which shall be
dealt with by the independent director in accordance with
clause 23.6.2 to 23.6.5 (as may be applicable in the
circumstances);
23.4.7 Both parties have the opportunity to make submissions to the
independent director either personally i.e. own
representatives or through legal representative;
23.4.8 The independent director shall act as an expert and not as an
arbitrator;
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23.4.9 The independent director shall be entitled, acting in his sole
and absolute discretion to determine the procedure in terms
whereof the dispute shall be resolved;
23.4.10 The independent director shall make an order as to his costs;
23.4.11 The decision of the independent director shall be final and
binding on both parties.
23.5 Forthwith after:
23.5.1 The Lessee is deemed to have consented to the relocation as
contemplated in clause 2.4 above; or
23.5.2 The parties resolve the dispute as contemplated in clause
23.5 above; or
23.5.3 The independent director makes his decision as contemplated
in clause 23.6.11 above;
The parties shall execute an addendum to this agreement
which addendum shall reflect the changes inter alia to the
agreement in respect of the premises and the rental payable.
23.6 The Lessor shall be liable for the Lessee Installation Costs as
defined in clause 23.1 minus the depreciation (if any) of the
assets installed as defined in clause 23.1. The depreciation
of the Lessee Installation Costs shall be calculated by using
the following formulae:
Lessee Installation Costs xUnexpired Period of the Lease
Period of lease
= Depreciated Lessee Installation Cost.
For example:
R 100 000 x 4 year = R 40 000
10 year (Depreciated Lessee installation Cost)
23.7 The liability of the Lessor in relation to the Relocation shall be
limited to the Depreciated Lessee Installation Cost as well any
cost as contemplated in clause 23.3.3.
23.8 The parties will endeavor to reach agreement in relation to
the Lessee Installation Costs based on the costs provided by
the Lessor’s Quantity Surveyor as contemplated in clause
23.1. If there is any dispute between the LESSOR and the
LESSEE in respect of the Lessee Installation Cost which is not
resolved within 30 (thirty) days of the new commencement
date, such dispute shall be determined by an independent
Quantity Surveyor having not less than 5 (five) years
experience in the development of Regional Shopping Centers
as appointed by the President of the Association of South
African Quantity Surveyors (or its successor-in-title). In
respect of he independent Quantity Surveyor, the parties
agree that-
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23.8.1 The independent Quantity Surveyor shall decide the dispute
as expeditiously as is reasonably possible;
23.8.2 Both parties shall have the opportunity to make submissions
to the independent Quantity Surveyor;
23.8.3 The Independent Quantity Surveyor shall act as an expert
and not as an arbitrator;
23.8.4 The independent Quantity Surveyor shall be entitled, acting in
his sole and absolute discretion, to determine the procedure
in terms whereof the dispute will be resolved.
23.8.5 The Independent Quantity Surveyor shall make an order as to
his costs;
23.8.6 The decision of the independent Quantity Surveyor shall be
final and binding on both parties.
23.9 The Lessee hereby waives any other claim whatsoever that it
may have against the Lessor arising from the relocation of
the Lessee to the new premises.
23.10 In regard to clause 23.3.3 the Lessee shall be entitled to
require reasonable changes to the specification of the new
premises provided that any additional costs arising from or in
connection with such changes shall be for the account of the
Lessee. In the event of any dispute in this regard, the
provisions of clause 23.10 shall apply mutatis mutandis.
24. BREACH OF LEASE BY THE LESSEE
24.1 Should the Lessee:
24.1.1 Fail to pay any amount due by the Lessee in terms of this
Agreement on the due date thereof; and/or
24.1.2 Commits a breach of any of the terms of this Agreement,
other than a breach referred to in clause 24.1.1 above, and
fails to remedy such breach within a period of 7(seven) days
after receipt of dispatch of notice per prepaid registered or
certified mail, telefax or e-mail calling on it to do so; and/or
24.1.3 Repeatedly breach any of the terms of this Agreement in such
manner as to justify the Lessor in holding that the Lessee’s
conduct is inconsistent with the intention or ability of the
Lessee to carry out the terms of this Agreement and
consistently breach this lease in such manner as to justify the
Lessor in holding that the Lessee’s conduct is inconsistent
with an intention or ability on the part of the Lessee properly
to comply with its obligations in terms of this lease (the
commission of the same breach, whether in respect of
payment or otherwise, on more than 2 (two) occasions in any
period of 12 (twelve) consecutive calendar months being
deemed to justify the landlord holding as aforesaid); or
24.1.4 Reach or attempt to reach a compromise with its creditors;
and/or
24.1.5 Permit any of its goods to be attached pursuant to a Court
judgment and fail to take steps to have such attachment set
aside; and/or
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24.1.6 Suffer any final judgment to be entered against it and fail to
satisfy that judgment within 14 (fourteen) days, and provided
further that the Lessee has not noted an appeal or made an
application for rescission of the said judgment (provided that
such appeal or application is properly pursued); and/or
24.1.7 Being a company or close corporation, be placed under
provisional or final judicial management or provisional or final
winding-up, whether voluntary or compulsory; and/or
24.1.8 Be a franchise and its franchise agreement is cancelled or
terminate or is interdicted on a temporary or permanent basis
from trading as a franchisee in any respect; and/or
24.1.9 Holds any license to conduct its business or part thereof and
such license is revoked or not renewed or extended;
Then, in any of such events, the Lessor shall be entitled, but
not obliged, notwithstanding any previous waiver or anything
to the contrary herein contained and without prejudice to its
claims for any arrear rent or other sums payable hereunder or
for any damages which it may suffer by reason of such
breach and/or cancellation, including but not limited to costs
of reinstatement of the premises at the Lessor’s election in
terms of clause 16.5, and commissions in respect of re-
letting of the premises, or to any other remedy which it may
have against the Lessee arising out of this Agreement or in
law, to either:
24.1.10 Forthwith cancel this Agreement and to resume possession of
the premises and upon so doing, to remove from the
premises any goods situated therein. Any goods removed
from the premises in terms of this clause shall be stored at
the cost and risk of the Lessee; or
24.1.11 Vary the terms of this Agreement by making it thereafter
terminable by 1 (One) month’s written notice given by the
Lessor;
24.2 Should any amount of rental not be paid in terms of clause
24.1.1, the Lessor shall be entitled, without prejudice to any
of its rights in terms of this Agreement or in law, to display a
notice that goods in the premises are judicially attached in
perfection of the Lessor’s hypothec;
24.3 Should the Lessee, at any time during the currency of this
Agreement, commit a breach of clause 24.1.1, then the
Lessor shall be entitled, but not obliged, to only accept future
payments by way of cash, bank guaranteed cheque or
electronic transfer and may payment in any other form may,
at the Lessor’s discretion, be refused and not regarded as
valid in terms of this Agreement;
24.4 If for any reason or on any ground the Lessee occupies the
premises and the Lessor disputes its right to do so, or the
Lessee fails to reinstate the premises as directed by the
Lessor and/or in terms of this Agreement, then, for the
duration of such dispute or failure, the Lessee shall
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(notwithstanding that the Lessor may contend that this
Agreement is no longer in force) continue to pay (without
prejudice to its rights) an amount equivalent to the monthly
rent and any other amounts due in terms of this Agreement (
as escalated, if applicable), monthly in advance on the 1st
(First) day of each month and the Lessor shall be entitled to
accept, render statements and recover such payments and
such acceptance of payment and rendering of statements
shall not in any way whatsoever affect the Lessor’s claim then
in dispute. If the dispute is resolved in favor of the Lessor,
the payments made and received in terms of this clause shall
be deemed to be amounts paid by the Lessee on account of
damages suffered by the Lessor by reason of the unlawful
occupation or holding over by the Lessee. The failure by the
Lessee to pay an amount stipulated in this clause should itself
constitute a material breach by the Lessee of its obligations.
Nothing in this provision will give the Lessee the right to
occupy the premises if the premises are occupied unlawfully,
nor would it give the Lessee the right should the Lessee’s
occupation be lawful to occupancy other than on a calendar
monthly basis;
24.5 Should the Lessee lawfully remain in the premises after the
expiry date, then without prejudice to any rights of the
Lessor, the rental and other charges shall automatically
escalate by the escalation rates as recorded in Items 3 and
4 of the Schedule on the day following the expiry date and
again escalate on each anniversary of the commencement
date. Nothing in this provision will give the Lessee the right to
occupy the premises if the premises are occupied unlawfully,
nor would it give the Lessee the right should the Lessee’s
occupation be lawful to occupancy other than on a calendar
monthly basis.
24.6 Where the goods on the premises forms the object of the
Lessor’s tacit hypothec, and where such hypothec is perfected
by the Lessor, the Lessee shall be entitled to the proceeds
from the sale of such goods should such goods be sold by the
Lessee and such proceeds shall be used towards the payment
of the indebtedness to the Lessor. Nothing contained in this
clause shall afford the Lessee the right to sell, dispose of or
alienate any of the assets or goods forming part of the
Lessor’s hypothec.
24.7 In the event of a cancellation of this lease by the Lessor in
accordance with the provisions of clauses 24.1.10 and
24.1.11 and the Lessor, as a result thereof, claiming
damages from the Lessee, the onus shall be on the Lessee to
prove the amount (if any) that should be credited to the
Lessee in respect of the reversion to the Lessor of the right to
relet the premises, or which the Lessor could have realized
there from by the use of the premises after they came into
the Lessor’s possession after cancellation, for the period from
the date of cancellation until the date upon which this lease
would have expired by efflux ion of time.
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24.8 If, on termination of the lease, repairs or renovations are
necessary to the premises by virtue of a failure of the Lessee
to carry out the obligations imposed upon the Lessee in terms
of this lease, the Lessor shall be entitled to carry out such
repairs or renovations as are necessary and to recover the
costs incurred by it from the Lessee. The Lessee shall also be
responsible for damages for loss of rent during the period the
repairs and renovations are being carried out, at no less than
the rent payable immediately prior to termination of the lease
and reckoned until the end of the month in which the work is
completed.
25. INTEREST AND LEGAL COSTS
25.1 In addition to the amount outstanding, the Lessee shall pay
interest at the rate of 2% (Two percent) above prime rate
compounded per month or part thereof, during the period
while payment is outstanding on all amounts due by it to the
Lessor in terms or arising out of this Agreement;
25.2 The Lessor will furthermore be entitled to debit the Lessee’s
account and recover from the Lessee, the costs of tracing
agents, and legal costs on the attorney and own client scale,
should any steps be taken by the Lessor pursuant to a breach
of this Agreement by the Lessee.
26. COSTS
26.1 The Lessee shall pay on demand the costs of drawing up this
Agreement as recorded in Item 23 of the Schedule.
27. CERTIFICATES
27.1 Any dispute in terms of this Agreement regarding the
calculation of any amount outstanding by the Lessee to the
Lessor and/or the date upon which the outstanding amount is
due by the Lessee to the Lessor shall be referred to the
Lessor’s auditors or financial manager for computation, in
their capacity as experts, and a certificate issued by the
Lessor’s auditors or financial manager setting out the amount
outstanding and/or the date upon which the outstanding
amount is due, shall be prima facie proof thereof. Such
certificate shall be valid as a liquid document in any court of
competent jurisdiction for the purposes of obtain provisional
sentence or summary judgment against the Lessee;
27.2 A certificate signed by any management employee of the
Lessor (whose authority, qualification or appointment need
not be proved) stating that any act or omission has occurred
on the part of the Lessee, shall be prima facie proof that such
act or omission has occurred.
28. CHANGE OF BUILDING NAME
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28.1 The Lessor shall have the right to change, at any time during
the currency of this agreement and in its sole and absolute
discretion, the name of the building. The Lessor shall not be
liable for any losses or damages suffered by the Lessee from
or incidental to such change of name.
29. SURETYSHIP
29.1 If the Lessee is a juristic person, the Lessee shall procure that
the person(s) in Item 6 of the Schedule executes and delivers
to the Lessor simultaneously with signature of this
Agreement, a Deed of Surety ship as per Annexure “B”
attached hereto in terms of which the person(s) binds
him/themselves, as the case may be, as surety and co-
principal debtor, jointly and severally with all other sureties
on behalf of the Lessee in favor of the Lessor for all the
obligations of the Lessee in terms of this Agreement, its
cancellation or any obligating originating from the occupation
of the premises;
29.2 As and when a new director is appointed to the board of
directors or, as the case may be, any new person becomes a
member or a trustee of the Lessee during the currency of this
Agreement, the Lessee shall notify the Lessor within 7
(seven) days of such event thereof, which notice shall contain
the name and addresses of the director, member or trustee
concerned and the Lessor may then and shall be entitled to
require such director, member or trustee to sign a Deed of
Surety ship similar to the Deed attached hereto marked
Annexure “B”;
29.3 If the Lessee is a partnership or any other unincorporated
association of persons, all the partners or members, as the
case may be, shall sign this Agreement on behalf of the said
partnership or association and shall, by their signatures
hererrto, bind themselves as sureties and co-principal debtors
with the Lessee for all its obligations in terms of this
Agreement.
30. GENERAL
30.1 The Lessor will not be bound by any representation or
warranty not expressly recorded in this Agreement. Purely by
way of example and without in any way limiting the
generality hereof, the Lessor records that it or its agent/s
may have certain perceptions or opinions regarding
pedestrian traffic, customer profile, location of premises or
other factors relating to the viability of the Shopping Centre.
In the event that the Lessor or its agents may have conveyed
those perceptions or opinions to the Lessee, the Lessee
acknowledges that:
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30.1.1 Any statements conveyed to it concerning those matters
constitutes nothing more than the honest opinion of the
Lessor or its agents;
30.1.2 Any statements thus conveyed to it do not amount to a
representation concerning those matters or a warranty that
what was told to it (the Lessee) would indeed eventuate and
prove to be correct;
30.1.3 Such statements did not induce the Lessee to conclude this
Agreement;
30.1.4 It (the Lessee) has formed its own independent view as to
the viability of concluding this Agreement.
30.2 This Agreement consisting of Schedule to General Conditions
of Lease, General Conditions of Lease and Annexures thereto
constitutes the whole agreement between the parties. No
agreement at variance with the terms and conditions of this
Agreement shall be binding on the parties unless reduced to a
written agreement signed by or on behalf of both parties.
30.3 No relaxation or indulgence which the Lessor may show to
the Lessee shall in any way prejudice its rights hereunder, in
particular, nor the acceptance by the Lessor of rent after due
date (whether on 1(One) or more occasions) shall preclude or
stop it from exercising any rights enjoyed by it hereunder by
reason of any subsequent payment not being made strictly on
due date.
30.4 The receipt by the Lessor or its agents of any rent or other
payments, shall in no way whatsoever prejudice or operate as
a waiver, rescission or abandonment of any cancellation or
right of cancellation effected or acquired prior to such receipt.
30.5 This Agreement is concluded by the parties upon consensus
between them and no party was placed under any duress to
enter into and conclude this Agreement.
31. LESSOR’S CONSENT
31.1 Save where it is expressly provided in this lease that the
Lessor’s consent or approval may not be unreasonably
withheld or refused, the grant or withholding or refusal by the
Lessor of its consent or approval, shall be within its absolute
discretion. Should there be any such express provision in this
lease and should a dispute arise between the Lessor and the
Lessee as to whether the Lessor has unreasonably withheld
or refused its consent or approval, the onus shall be on the
Lessee to prove that the Lessor has withheld or refused its
consent or approval unreasonably.
31.2 The Lessor may grant consent subject to certain terms and
conditions which terms and conditions shall also be referred
to prove that the Lessor has withheld or refused its consent
or approval unreasonably.
32. JURISDICTION OF MAGISTRATE’S COURT
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At the option of the Lessor, any action or application arising
out of this Agreement may be brought before the Magistrate’s
Court having jurisdiction in respect of the Lessee,
notwithstanding that the amount in issue may exceed the
jurisdiction of such Court.
33. DOMICILIUM CITANDI ET EXECUTANDI
33.1 The Lessor chooses as domicilium citandi et executandi and
for service of any notices under this Agreement, at the
address stipulated in Item 1 of the Schedule;
33.2 The Lessee chooses as domicilium citandi et executandi as
referred to in Item 2 of the Schedule;
33.3 All notices which are given by the Lessor to the Lessee
hereunder shall be given to it at the premises or at such
other address in the Republic of South Africa of which the
Lessee may advise the Lessor by written notice duly received
by the Lessor;
33.4 All notices given by the Lessee to the Lessor hereunder shall
be given to it at the address specified in clause 33.1 of this
Agreement, or at such other address in the Republic of South
Africa of which the Lessor may advise the Lessee by written
notice duly received by the Lessee;
33.5 All notices sent by either party to the other shall be delivered
by hand or sent by prepaid registered mail;
33.6 All notices delivered or sent as aforesaid to the respective
addresses provided for in this clause shall be deemed to have
been received by the addressee on the date of delivery or on
the 7 (Seventh) business day after posting, as the case may
be.
34. COMPANY TO BE FORMED
If this lease is entered into by a person/s acting as a trustee/s
on behalf of a company or close corporation to be formed,
then;
34.1 The trustee/s personally jointly and severally warrant/s to the
Lessor that the company or close corporation to be
incorporated or formed will, within 60 (sixty) days from the
date of this agreement;
34.1.1 Be duly formed and incorporated; and
34.1.2 Duly adopt, ratify and confirm without modification this
agreement; and
34.1.3 Take all other steps necessary to render this agreement
binding on it; and
34.1.4 Deliver up its Certificate of Incorporation and Memorandum
and Articles of Association in the case of a company, its
Founding Statement and Association Agreement (if any) in
the case of a Close Corporation in the case of a trust together
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with a true copy of the resolution referred to in clause
34.1.1 duly certified by the chairman of the meeting.
34.2 The trustee/s personally hereby jointly and severally bind
themselves to the Lessor that, failing compliance with the
provisions of clause 34.1 hereof, they shall personally be
bound by all the obligations and entitled to all the rights of
the Lessee in terms and arising out of this Agreement of
lease.
34.3 In the event of proper compliance with the provisions of
clause 34.1 hereof the trustee/s shall be bound by all the
terms of the Deed of Suretyship incorporated herein and
signed by them in their personal capacities but in the event
that they shall be personally bound by all the obligations and
entitled to all the rights of the Lessee by virtue of non-
compliance with the provisions of clause 34.1 hereof, then
the Deed of Suretyship shall be regarded “pro non scripto”
35. LIABILITY OF PARTNERS
If the Lessee is a partnership then by their signature hereto,
the individual partners of the Lessee bind themselves, both as
a partnership and jointly and severally as individuals, for all
the Lessee’s obligations to the Lessor under or arising out of
this Lease. Similarly joint Lessees shall be jointly and
severally liable for all their obligations as Lessee’s under or
arising out of this Lease.
36. FICA REQUIREMENTS
The Lessee acknowledges the Lessor’s duty to comply with
the Financial Intelligence Centre Act, 38 of 2001, as
amended, and agrees to provide the Lessor with the relevant
documents as required by law and set out in Annexure “J”.
37. OPTION TO RENEW
37.1 The Lessee shall only be entitled to exercise the option to
renew this lease as provided in Item 15 of the Schedule,
provided that the Lessee:
37.1.1 Has not, on more than one occasion, breached a provision of
this lease, in respect of which a notice of breach has been
given by the Lessor in terms of clause 24; and
37.1.2 Is not in breach of this lease at the time the option is
exercised;
37.2 The option may only be exercised by the Lessee on written
notice given to the Lessor not later than 6 (six) months prior
to the expiry date. Should the option not be exercised by that
date, it shall automatically lapse.
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37.3 All the terms and conditions of this lease shall remain of full
force and effect during the renewal period, save for rental
and escalation thereof, which shall be mutually agreed upon
and that there shall be no further option to renew. Should the
parties fail to agree on rental and/or escalation thereof for
the renewal period within 3 (three) months of the exercise of
the option, the option shall automatically lapse.
37.4 For the purposes of this clause 38, the following terms shall
have the meanings assigned to them hereunder:
37.4.1 “Expiry date” shall mean the date of expiry of the initial
period.
38. CONSENT TO CREDIT VERIFICATION
38.1 The Lessee irrevocably consents to the Lessor and / or its
agents requesting any information available on any credit
bureau regarding the Lessee stipulated herein from time to
time.
38.2 This consent includes (but is not limited to) that the Lessor
and/or its agents, as the case may be, may:
38.2.1 Perform a credit search on the Lessee’s credit profile with
more than one registered credit bureau at any time during
the currency of this lease.
38.2.2 Should the Lessee fail to meet its commitments in terms of
this lease, the Lessor and/or its agents record the Lessee’s
non-performance to any credit bureau.
38.2.3 Request a report where the Lessor and/or its agents are
monitoring the Lessee’s payment behavior by researching the
Lessee’s profile.
38.2.4 Use any new information and data obtained from any
registered credit bureau in respect of future applications to
lease (if applicable).
38.2.5 Record the details in respect of the Lesse’s account with any
registered credit bureau.
38.2.6 Record and transmit details of the Lessee’s performance in
terms of this agreement and to any registered bureau how
the account is conducted by the Lessee in meeting its
obligations in terms of this lease.
38.3 The Lessor will give the Lessee 20 (twenty) business days
written notice prior to forwarding the details as set out above
to any registered credit bureau.
39. SEVERABILITY
Should any one or more of the provisions of this Agreement
be unenforceable then such provisions shall be severed from
this Agreement and the remaining provisions shall be of full
force and effect.
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The terms of this Agreement shall be binding on the parties
hereto, their heirs, executors, administrator’s, successors in
title or assigns.
DATED at _______________ this ______________day of _________________2010
__________________________ ______________________________
Signature for the Landlord Full Name
who warrants his authority to execute this Agreement.
AS WITNESSES FOR THE LANDLORD:
1. ___________________ ______________________________
Signature Full Name
2. ____________________ ______________________________
Signature Full Name
DATED at ________________ this ___________day of ____________________2010
___________________________ ______________________________
Signature for the Tenant Full Name
who warrants his authority to execute this Agreement.
AS WITNESSES FOR THE TENANT:
1. ______________________ ______________________________
Signature Full Name
2. ______________________ ______________________________
Signature Full Name
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ANNEXURE “C”
DEED OF SURETYSHIP
, I
______________________________________________
(Id NR. _____________________________ ), the undersigned,
hereby bind myself to:
JUBILEE CROSSING (PTY) LTD
REGISTRATION NO. 2006/021420/07 or its nominee
and it’s successors-in-title as surety for and co-principal debtor with:
(PTY) LTD (Registration No ..............................................)
for the due and punctual payment of all sums of money and the due and punctual
fulfillment and performance by the tenant of all debts and obligations of whatsoever
nature and howsoever arising from a written Agreement of Lease ("the Lease")
concluded between the landlord and the tenant in respect of premises leased by the
landlord to the tenant in the building situated on ……………………………………….; to which
this Deed of Surety ship is annexed, including damages arising from breach or
termination of the Lease.
The conditions applicable to this Surety ship are:
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ANNEXURE “C”
1. No alteration or variation of the lease, either present or future, shall in any way
release me from my liability hereunder.
2. The landlord shall be entitled, without reference or notification to me and without
effecting its rights hereunder, to release other sureties and securities, to grant the
tenant extensions of time for payment and to compound or to make any other
arrangements with the tenant for the discharge of the tenant's indebtedness.
3. If the tenant shall be placed in liquidation or under judicial management, or shall
submit an offer of compromise or of composition or scheme of arrangement in
terms of any Company or Insolvency Law, the landlord shall be entitled to accept
any dividend on account and in reduction of the tenant's indebtedness without
prejudice to its rights against us, which rights shall further not be prejudiced by its
acceptance of any other securities, guarantees or suretyships arising out of any
such event. I further bind myself in any such event not to file any claims against
the tenant, save with the prior written consent of the landlord.
4. For the purposes of any action against me for provisional sentence, a certificate
under the signature of the landlord as to the amount owing by the tenant to the
landlord and of the fact that the due date for the discharge of the obligations
and/or my obligations hereunder has arrived shall be sufficient and satisfactory
proof of the facts therein stated until the contrary shall have been proved.
5. In terms of Section 45 of the Magistrate's Court Act of 1944, I hereby consent to
the jurisdiction of the Magistrate's Court having jurisdiction in terms of Section 28
of the said Act in respect of any action to be instituted against me by the landlord
in terms hereof. It shall, nevertheless, be entirely within the discretion of the
landlord as to whether to proceed against me in such Magistrate's Court or any
other Court having jurisdiction.
6. I hereby expressly renounce the benefits of the legal exceptions of "order',
"excussion", "division", "cession of action" and all or any exceptions which could or
might be pleaded to any claim by the Landlord against the surety, with the
meaning, force and effect of all of which exceptions I declare myself to be fully
acquainted.
7. For the purposes of this Suretyship and any proceedings, which may be instituted
by virtue hereof, I hereby choose domicilium citandi et executandi, where all
notices and processes may be effectively served and deliveredupon
the surety, at
______________________________________________________(ADDRESS).
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ANNEXURE “C”
8. As part of the surety’s liability in terms hereof, I bind the surety as aforesaid to pay
the amount of all charges and expenses of whatsoever nature, including but
without derogating from the generality of the aforesaid, Attorney and Client legal
costs and collection commission incurred by the landlord in securing or
endeavouring to secure fulfillment of the obligations. I undertake to pay the costs
of the drawing of this Suretyship and the stamp duty payable on it.
DATED at__________________this_____________day of ___________________2010
__________________________________________ _____________________________
Signature for the Surety Full Name
who warrants his authority to execute this Agreement.
AS WITNESSES FOR THE SURETY:
1. _____________________________ ____________________________
Signature Full Name
2. _____________________________ ____________________________
Signature Full Name
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ANNEXURE “E”
EXAMPLE TO BE GIVEN TO BANK
The Landlord: JUBILEE CROSSING (PTY) LTD
Transaction No:_____________________
Date:_____________________
LEASE GUARANTEE BETWEEN JUBILEE CROSSING (PTY) LTD
(Registration No: 2006/021420/07) and _____________________
(Registration No: ______________)
We, ____________________ [name of Bank] Registration No.
_______________________ (“the Bank”), advise that we are holding the sum
of R _______________(Amount in words) “the Guaranteed Amount”)on
behalf of ____________________( “the Lessee”) at the disposal of JUBILEE
CROSSING (PTY) LTD (“the Lessor”) for he lease agreement of certain
premises situated at cnr Jubilee Road (D154) and Harry Gwala Road
(D2757) erf 13299, Hammanskraal West, Ext 7 (“the Lease Agreement”)
The Bank will pay on receipt of a first written demand from the Lessor, stating
that the amount is due and payable and that the Lessee is in breach of the
Lessee’s obligations under the Lease Agreement, provided that the claimed
amount will be payable up to the maximum of the Guaranteed Amount.
The Bank’s liability under this guarantee is principal in nature and is not
subject to any agreement. The Bank’s liability shall not be reduced, or in any
way be affected by any alteration of any agreements entered into, or to be
entered into, with the Lessor.
The Bank will pay on demand and will not determine the validity of the
demand or the correctness of the amount demanded, or become party to any
claim or dispute of any nature, which any party may allege.
The guarantee is neither negotiable nor transferable, is restricted to the
payment of a sum of money only and is limited to the Guarantee Amount.
The Guarantee will expire on _______________ being three (3) calendar
months after the termination of the Lease Agreement, or upon payment of the
Guaranteed Amount in full by the Bank, whichever event occurs first, and no
further claims will then be considered.
The Bank may at any time withdraw from this Guarantee by giving three (3)
months written notice and make payment of the Guaranteed Amount by way
of electronic fund transfer into the following account upon which the Original
Guarantee will be returned by the Lessor:
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 54 of 54
Account Holder:
Bank:
Branch Code:
Account number:
This guarantee may only be presented and payment will only be made at the
___________________ branch of the Bank and against return of this original
Guarantee by the Lessor or the Lessor’s duly authorized agent.
The original Guarantee must be returned to the Bank, either against payment
of the Guaranteed Amount, or expiry thereof.
Any change to the terms and/or conditions of this Guarantee, must first be
agreed to in writing by the Lessor, the Lessee and the Bank.
FOR:____________________BANK
AT____________________ON _________________________
_________________________________________________
(FULL NAMES)(FULL NAMES)
GUARANTEE NO._____________________
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 55 of 55
ANNEXURE “F”
AGREEMENT: FRANCHISE BUSINESS CONTINUANCE
Lessor : _____________________________
Lessee : _____________________________
Franchisor :_____________________________
Should the Lessee occupy the leased premises and conduct the business as a
franchisee, the parties agree as follows:
1. Notwithstanding the provisions of clause 24 of the General
Conditions of Lease, upon the Lessee committing a breach of the
agreement of lease and with effect from such date, the Franchisor shall
immediately take over the business as conducted in the leased premises
and such occupancy will be on the same terms and conditions as this
then cancelled agreement of lease. The Franchisor shall sign
simultaneously with such take over of the business, an agreement
reflecting the same terms and conditions of the cancelled agreement of
lease except that such agreement of lease will be limited to the
unexpired period of the agreement of lease, failing which the Lessor may
let the premises to any other tenant;
2. The Franchisor will be entitled to consider prospective new
franchisees and the Lessor will in respect of new franchisees recommend
by the Franchisor, in its sole and absolute discretion, approve a new
franchisee for the leased premises. With effect from the date on which
the Lessor approves the new franchisee for the leased premises, the
Franchisor’s rights, title and interest in and to the agreement of lease will
be ceded and the Franchisor’s obligations in and to the agreement of
lease will be delegated and assigned to such new franchisee, and the
Lessor and Franchisor hereby accept such a cession and assignment from
such date;
3. Should any approved new franchisee commit a breach in
terms of the agreement of lease, the provisions of clauses 1 to 2 of this
Annexure above shall apply mutatis mutandis.
Signed at ____________________on ________________________2010
_______________________
For: Lessor(duly authorized)
_______________________
For: Lessee(duly authorized)
_______________________
For: Franchisor(duly authorized)
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 56 of 56
ANNEXURE “E”
‘DEBIT AUTHORITY’
TO: NEW AFRICA DEVELOPMENTS
ADDRESS: P O BOX 11918
ERASMUSKLOOF
PRETORIA
0048
1. I/We the undersigned
NAME OF DEBTORS:
_________________________________________________
(Indicate company, close corporation, partnership etc.)
ADDRESS : ___________________________________________
BANK : ___________________________________________
BRANCH : ___________________________________________
BRANCH CLEARING No : ___________________________________________
ACCOUNT No : ___________________________________________
TYPE OF ACCOUNT : ___________________________________________
understand that the transfer of funds hereby authorised constitutes a means of
payment to be cleared electronically through a system known as BUSINESS
INTEGRATER, and that this system requires my/our abovementioned account to
be linked with -
ABSA BANK, CURRENT ACCOUNT, ACCOUNT NO: 407 422 6228
2. I/We authorise you hereby to debit my/our account with such an amount as may
be due and payable to you with a maximum number of debit transactions of ONE
(1) per month. Being moneys due and payable by myself/ourselves to you now
or in the future.
2.1 DEBIT ORDER TO GO OFF ON THE FIRST OF EVERY MONTH.
3. I/We understand further that:
3.1 The authorisation of such a link-up is subject to my/our account being
barred from access of whatever nature, save for the debiting of my/our
account authorised in terms hereof;
3.2 the transfer of funds is hereby authorised and shall take place according
to instructions given by you through personal computer, which is linked to
ABSA's central computer, and that you shall not provide ABSA with any
instruction to debit my/our account with an amount that is not lawfully
due and payable to you by myself/ourselves;
3.3 the transfer of funds hereby authorised shall take place without prejudice
of my/our rights;
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 57 of 57
3.4 if my/our account is held at a financial institution other that ABSA BANK,
the clearing of the funds between the respective institutions shall take
place in co-operating with the Automated Clearing Bureau (Pty) Ltd;
3.5 in addition to any receipt of payment that you may issue, the particulars
of every debit hereby authorised shall appear on my/our bank statement;
3.6 the debit order facility will commence for rentals due on the
___________________
SIGNED AT ____________ON THIS _______ DAY OF ___________2010
SIGN IN FULL SIGN IN FULL
_______________________ ___________________
WITNESS AUTHORISED SIGNATURE
INITIAL HERE-
Jubilee Mall Lease Agreement - 17/2/10 Page 58 of 58
ANNEXURE “J”
The following documents will need to be submitted to the Landlord for the Landlords records,
in compliance with the Financial Intelligence Centre Act:
If Tenant is a Company
a) CM1 (Certificate of Incorporation), – stamped by Registrar of Companies,
b) CM29 (Register of Directors) – stamped by Registrar of Companies,
c) CM22 (Notice of Registered Office – stamped by Registrar of Companies,
d) Copies of Identity Documents of all the current directors listed on the CM29,
e) Company / Board Resolution authorising lease signatory to sign same on
behalf of the company,
f) Vat Registration Certificate
g) Proof of Income Tax Registration from SARS
h) Verification of Trade Name and business address by supplying copy of a
utility bill, Telkom Bill or the like
If Tenant is a close corporation
a) CK1 (Founding Statement and Certificate of Incorporation)
b) CK2 (Amended Founding Statement), if applicable
c) Resolution authorising lease signatory to sign same on behalf of the close
corporation,
d) Vat Registration Certificate
e) Proof of Income Tax Registration from SARS
f) Verification of Trade Name and business address by supplying copy of a
utility bill, Telkom Bill or the like
If Tenant is a sole proprietor
a) Certified Copy of Identity Document
b) Vat Registration Certificate
c) Proof of Income Tax Registration from SARS
d) Verification of Trade Name and residential address by supplying copy of a
utility bill, Telkom Bill or the like
INITIAL HERE-
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