PART B PAGE
32 Air Conditioning ……………………………………………………………………………………………………… 11
40 Costs ……………………………………………………………………………………………………………………. 14
GENERAL CONDITIONS OF LEASE
In this lease, unless the content shall otherwise require:
2.1 If any provision in a definition is a substantive provision conferring rights and obligations on any party, notwithstanding that it is only a definition, effect shall be given to it as if it were a substantive provision within the body of the lease;
2.7 the headings are used for convenience only and must not be used as an aid to the interpretation of the lease;
2.8 when any number of days is prescribed in this lease, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;
2.9 where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall
2.10 the terms specified in Clause 2 of this lease shall bear the same meanings throughout this lease;
2.11 wherever this lease provides that the SUB-TENANT shall have no remedy, that shall be construed as a waiver by the SUB-TENANT of its claims for loss or damage or right of cancellation or remission of rental or any other claim or remedy (without limitation eiusdem generis) whether in contract or delict or otherwise against the TENANT and/or the designated person notwithstanding that the TENANT and/or the designated person may have acted or failed to act negligently;
2.12 should the annexures to this lease not contain their own definitions, then the terms of this clause shall be deemed to apply to such annexures.
2.13 in the remainder of this lease the terms “appurtenances” means all the installations and appliances in the premises and includes, without prejudice to the generality of the term, any keys, locks, windows, sewerage pans, basins, water taps and fittings, access doors, interior doors, remote control equipment, fire control equipment, windowpanes, window frames and air-conditioning units.
3.1 If The TENANT is unable to give the SUB-TENANT occupation of the premises on the commencement date for any reason whatsoever, whether or not occasioned by the negligence of the TENANT and/or the designated person, including (without limiting the generality of the aforegoing) the premises being incomplete or in a state of disrepair or an existing SUB-TENANT not having vacated the premises, the SUB-TENANT shall have no remedy and shall accept occupation and commence paying rental on such later date on which the premises are available.
If the premises have not been constructed or are in the course of construction when this lease is signed, then the premises shall be regarded as available for occupation by the SUB-TENANT as soon as the TENANT deems the interior of the premises to be completed or fit for occupation by the SUB-TENANT and adequate access can be gained thereto. Should the SUB-TENANT dispute the TENANT’s decision in this regard, the matter shall be referred to an architect of not less than 5 years standing agreed by the parties, and failing such agreement, an architect appointed by the president for the time being of the Institute of Architects of South Africa, whose decision shall be binding on the parties. The costs of referring the matter to an architect in terms hereof shall be borne in equal proportion by the parties.
In the event of such a delay, the period of the lease shall remain unaltered and the date of commencement and termination shall be extended accordingly.
3.2 Should the building be incomplete at the commencement of this lease, the SUB-TENANT acknowledges that it may suffer a certain amount of inconvenience from building operations and from noise and dust resulting there from as well as from the interruption in the supply of electricity, gas, air conditioning or other amenities or the complete cessation of such amenities and that it will have no remedy by reason of any such inconvenience during the period of completion (whether or not occasioned by the negligence of the TENANT and/or the designated person.)
3.3 This lease shall not be binding upon the TENANT notwithstanding that it may have been signed by the SUB-TENANT or that the SUB-TENANT may have taken occupation of the premises with the consent of the TENANT or that the TENANT has otherwise implemented or allowed any provision of this lease to be implemented, until the TENANT shall have signed the lease.
3.4 The TENANT shall, without assigning a reason therefore, be entitled to refuse to sign this lease.
3.4.1 Should the SUB-TENANT already have taken possession of the premises and the TENANT decline to sign this lease, the SUB-TENANT shall be deemed to be on a monthly tenancy subject to one calendar month’s written notice but subject in all other respects to the terms and conditions of this lease.
3.4.2 Should the SUB-TENANT not have taken possession of the premises and the TENANT decline to sign this lease, neither party shall be bound in terms hereof.
3.5 The acceptance by the TENANT and/or the designated person of any payment of whatsoever nature, including but without limiting the generality of the aforegoing, rent or any deposit, or the giving of possession of the premises to the SUB-TENANT shall under no circumstances be considered as confirmation by the TENANT of this lease.
4.1 The rental and building operating costs together with the attributable value added tax thereon set forth in the first three columns of clause 1.12 and any other amount payable on a monthly basis in terms of this lease shall be paid monthly in advance on the first day of each month without deduction or set-off to Investment Property Services, Kelvin Lodge, 2 Kelvin Road, Newlands, 7700, as agents for the TENANT, or at such other address as the TENANT may from time to time in writing direct.
4.2 The FIRST month’s rent, building operating costs, documentation fees and attributable value added tax (together with the stamp duty payable “if any”) and the deposit referred to in clauses 1.13 and 8 shall be paid on the signing of this lease by the SUB-TENANT.
5 ELECTRICITY, WATER, GAS AND OTHER CHARGES PAYABLE BY THE SUB-TENANT
5.1 The SUB-TENANT shall be liable for and shall pay on demand for any charges together with the value added tax thereon arising out of the use of electric current, water, gas, refuse removal, sewerage and effluent and other charges (including basic and service charges), in respect of:
5.1.1 the premises
5.1.2 the building and/or property and which are attributable to the use of the SUB-TENANT.
The SUB-TENANT’s liability for such charges shall be in accordance with separate meters and/or separate accounts rendered by the local authority, or in accordance with sub-meters which the TENANT shall be entitled to install at any time at its discretion. Should no such meters be installed, then the SUB-TENANT’s liability shall be the SUB-TENANT’s percentage proportionate share of all such charges for the property and/or the building.
5.2 Should the SUB-TENANT fail to pay the charges and/or value added tax thereon for electricity supplied to its premises within 7 days of written demand then, without prejudice to any other rights it may have, the TENANT shall be entitled to terminate the supply of electricity to the SUB-TENANT’s premises and the SUB-TENANT shall have no remedy, notwithstanding that the TENANT and/or the designated person may have acted or failed to act negligently.
5.3 Notwithstanding the charge for operating costs reflected in the second column of clause 1.12, the TENANT shall not be obliged to provide any services to or in respect of the premises or the property save as expressly provided for in this lease.
6 ASSESSMENT RATES AND OTHER MUNICIPAL TAXES
6.1.1 the rates or levies payable in respect of the Land and/or Building be increased at any times(s) during the period of this Lease so as to exceed the rates or levies payable in respect of the Land and/or Building as at the commencement date of this Lease: or
6.1.2 any new tax or levy be imposed upon the TENANT at any time during the period of the Lease in respect of the Premises and/or the Building and/or the Land,
then and in any such event the TENANT shall be entitled to increase the rental payable by the SUB-TENANT as specified in Clause 1.12 of part A hereof by the SUB-TENANT’s Share of any increase in rates or levies or any such tax or levy.
6.2 Any amount due to the TENANT in terms of Clause 6.1 shall be paid by the SUB-TENANT upon notification (whether in the form of a separate notice or statement of account) by the TENANT.
6.3 If there is any dispute as to the amount of the SUB-TENANT’s liability in terms of this Clause, the decision of the TENANT’s auditors who shall act as experts and not as arbitrators shall be final and binding upon the parties. The cost of such consultation shall be borne by the SUB-TENANT.
6.4 The TENANT shall be obligated to contest any valuation of the premises and/or Building and/or the property imposed by any authority entitled to impose any of the charges or fees referred to in Clause 6.1.
7 VALUE ADDED TAX
The SUB-TENANT shall pay to the TENANT value added tax at the prescribed rate from time to time in terms of the relevant legislation on any amounts payable to the TENANT in terms of this lease together with such amounts.
8.1 The SUB-TENANT shall on the signing hereof pay the deposit mentioned in clause 1.13 hereof in cash or lodge a bank guarantee in the form and from a bank acceptable to the TENANT. If it is acceptable to the TENANT that the SUB-TENANT lodge a bank guarantee in lieu of a cash deposit, the TENANT shall have the right to require the SUB-TENANT to replace the bank guarantee requirement with a cash deposit at any time during the currency of this lease or any renewal hereof with a cash deposit equal to the original bank guarantee value or such increased amount as described in clause 8.3 below.
8.2 The TENANT shall have the right of applying the whole or portion thereof towards payment of the rent, water, electric current, gas or other charges, key replacements, renovations or any other liability of whatsoever nature for which the SUB-TENANT is responsible including damages arising on cancellation. If any portion of the deposit is so applied, the SUB-TENANT shall forthwith reinstate the deposit to its original amount or the amount contemplated in clause 8.3 whichever is the greater. The deposit shall be retained by the TENANT and/or its agents free of interest until after the vacating of the premises by the SUB-TENANT and the complete discharge of all the SUB-TENANT’s obligations to the TENANT arising from the lease. The SUB-TENANT shall not be entitled to set off against the deposit any rent or any other amount payable by it.
8.3 It is recorded that the deposit has been calculated based on the rental and other charges payable by the SUB-TENANT at the commencement of the lease. The TENANT will review the amount of deposit from time to time having regard to the amount of rental and other amounts payable under the lease by the SUB-TENANT from time to time and will be entitled to increase it correspondingly. The SUB-TENANT shall pay such increase within 7 days of written demand.
If the SUB-TENANT fails to pay rent or any other monies on due date the TENANT shall charge the SUB-TENANT and the SUB-TENANT shall pay on demand interest on overdue sums at a rate of prime plus 3% per annum compounded calculated from due date to date of payment. This right to charge interest on overdue amounts shall not, in any way, detract from any other rights of the TENANT in terms of this lease. The SUB-TENANT shall be liable for any costs incurred by the TENANT in enforcing any of its rights or the SUB-TENANT’s obligations under this lease on an attorney and own client scale (which shall include collection charges) whether such costs were incurred prior to the institution of any such action or application, during the course of any such action or application, in enforcing any judgment, in regard to any appeal against any judgment or otherwise.
The TENANT shall be entitled in its sole and absolute discretion to appropriate any amounts received from the SUB-TENANT (whether the SUB-TENANT has allocated it or not) towards the payment of any cause or debt or amount owing by the SUB-TENANT to the TENANT arising out of this lease.
11.1 The SUB-TENANT shall have no remedy against the TENANT, and/or the designated person:-
11.1.1 by reason of the premises or the building or property or any part thereof or any installation or appurtenance being in a defective condition or in a state of disrepair or any particular repair not being effected by the TENANT for which the TENANT is liable in terms of this lease or the TENANT, and/or the designated person, causing damage to the premises or the building or the property.
11.1.2 in respect of any damage caused to the stock-in-trade, furniture, equipment, installations, books, papers or other articles, or any assets of any nature whatsoever kept in the premises or the building or on the property by the SUB-TENANT, its servants, invitees, agents, directors or representatives or in regard to the SUB-TENANT’s business or any consequential loss suffered by the SUB-TENANT, its servants, invitees, agents, directors, clients or representatives or loss of life and/or injury to person caused to or sustained by or occurring in respect of the SUB-TENANT, its servants, invitees, agents, directors, clients or representatives on, about or in the premises, building and/or property as a result of water seepage or leakage wherever and howsoever occurring or by rain, hail, lightning, fire, riot, or civil commotion, or as a result of vis major or casus fortuitus or (without limitation by reference to the preceding categories) for any other reason whatever and the SUB-TENANT indemnifies the TENANT and/or the designated person against any loss, damage or expense, including legal costs on an attorney and own client scale, which may be demanded from or sustained by one or more of such parties in respect of the aforegoing.
11.1.3 for any interruption in the supply of water, electricity, heating, lifts or any other service however caused, including but without limiting the generality of the aforegoing, any interruption due to any act or omission on the part of the TENANT, and/or the designated person, if in such case the TENANT considers it necessary to enable it to exercise its rights under the lease.
11.2 All the provisions of this clause 11 shall apply and be fully operative notwithstanding that any loss, damage, injury or loss of life hereinbefore referred to may occur or be sustained in consequence of anything done and/or omitted by the TENANT and/or the designated persons, whether negligently or otherwise howsoever, and notwithstanding that the TENANT may have been in breach of any of its obligations under the lease.
11.3 For the purposes of any action against the SUB-TENANT hereunder, for provisional sentence or otherwise, a certificate by the managing agent of the TENANT as to the amount owing by the SUB-TENANT and to the fact that the due date of payment of such amount has arrived shall be sufficient and satisfactory proof of the facts therein stated until the contrary shall have been proved.
12.1 The parties choose as their domicilia citandi et executandi for all purposes under this lease, whether in respect of court processes, notices or other documents or communications of whatsoever nature, (including the exercise of any option), the following addresses:
12.1.1 The TENANT
12.1.2 The SUB-TENANT
Refer to Part A – clause 1.2
12.2 Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing, but it shall be competent to give notice by telefax.
12.3 Any party may by notice to any other party change its domicilium citandi et executandi to another physical address or telefax number in the Republic of South Africa provided that the change shall become effective on the 7th day after the receipt of the notice by the addressee.
12.4 Any notice to a party contained in a correctly addressed envelope and –
12.4.1 sent by prepaid registered post, to it at its domicilium citandi et executandi, or
12.4.2 delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et
Shall be deemed to have been received on the day of delivery (unless the contrary is proved). If any notice is given by telefax, it shall be deemed to be received on transmission.
12.5 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
The premises are let “as is” and the TENANT does not warrant that :
13.1 the premises are or will be suitable for any of the purposes for which the premises may be used in terms hereof or the SUB-TENANT’s requirements.
13.2 the SUB-TENANT will be granted or provided with any licenses, consents, authorities, services or permits in respect of the premises for the conduct of any business or any other type of use, or that such licenses, consents, authorities, services or permits will be renewed from time to time. The SUB-TENANT shall be obliged to take all steps (including incurring costs if necessary) to obtain licenses or renewal of such licenses or permits from time to time.
If the TENANT in order to comply with the laws, whether in force prior to or after the commencement of negotiations, is required to take any such steps as will result in the SUB-TENANT being deprived, either temporarily or permanently, of the beneficial use of any portion of the premises, the SUB-TENANT shall have no remedy against the TENANT but shall be entitled to a proportionate remission in basic minimum monthly rental payable in terms of clause 1.12, above, for the relevant period.
The SUB-TENANT shall comply with all laws, by-laws and regulations (including but not limited to the requirements of the Occupational Health and Safety Act 85 of 1993 as amended) relating to SUB-TENANTs or occupiers of business premises or affecting the conduct of any business carried on in the premises, and shall not contravene or permit contravention of any of the conditions of title under which the property is held by the TENANT or any of the provisions of the Town Planning Scheme applicable to the building, nor do or cause or permit to be done in or about the building anything which may be or cause a nuisance or disturbance to other occupiers of the building, or occupiers of neighboring premises.
16.1 The SUB-TENANT shall not sublet the premises or any portion thereof, nor cede nor assign nor pledge this lease or any of its rights hereunder without the TENANT’s prior written consent. Notwithstanding anything to the contrary contained or implied herein in the event of the SUB-TENANT wishing to sublet, then application for the consent of the TENANT shall be made to the TENANT –
16.1.1 in writing, setting out the name, address, business and bank information of the proposed sub-SUB-TENANT (if any);
16.1.2 not less than 60 (sixty) days and not more than 90 (ninety) days prior to the date on which it is contemplated that the proposed sub-lease shall commence;
Notwithstanding anything to the contrary contained or implied in this lease the TENANT shall on receipt of such an application, be entitled by written notice delivered to the SUB-TENANT, either to –
16.1.3 consent to the sub-lease, or
16.1.4 refuse to consent to the sub-lease.
16.2 The SUB-TENANT shall further not give up occupation or possession of the premises or any portion thereof to any person or permit any person whether as licensee, agent, occupier, custodian or otherwise, to enter into possession or to occupy or take possession of the premises or any portion thereof for either a definite period or at all, without the TENANT’s prior written consent.
16.3 If the SUB-TENANT is a company whose shares are not listed on a recognized stock exchange or a close corporation, no shares or members’ interest therein shall be beneficially transferred from its shareholders or members nor may any shares be beneficially allotted to any person other than such shareholders or members, nor may any new member’s interest be created without the TENANT’s prior written consent which, in the case of an allotment or transfer of shares or members interests which will still leave control of the SUB-TENANT with the beneficial shareholders or member’s at the commencement of the lease or of a transfer of shares or members’ interest to a deceased shareholder’s or member’s heirs, shall not be unreasonably withheld.
17.1 If the SUB-TENANT is a partnership then by their signature hereto, the individual partners of the SUB-TENANT bind themselves, both as a partnership and jointly and severally as individuals, for all the SUB-TENANT’s obligations to the TENANT under or arising out of this lease, including but without limiting the generality of the aforegoing, the payment of any compensation or damages which may be payable by the SUB-TENANT as a result of the cancellation or termination of this lease. Similarly joint SUB-TENANTs shall be jointly and severally liable for all their obligations as SUB-TENANTs under or arising out of this lease.
17.2 If a party enters into this agreement as agent or trustee of or for the benefit of a company or close corporation, which is to be the SUB-TENANT, whether the party be described as a trustee or as agent for the said company or close corporation or not, then:-
17.2.1 if proof satisfactory to the TENANT has not been submitted to the TENANT within 30 (thirty) days of the date of first signature of this lease that the company or close corporation and has effectively ratified or adopted this lease, or lawfully accepted the lease as binding on it, the party concerned shall be liable hereunder as SUB-TENANT;
17.2.2 until the company or close corporation has become the SUB-TENANT hereunder the party concerned shall be liable for all the obligations imposed on the SUB-TENANT hereunder; and
17.2.3 if the company or close corporation becomes the SUB-TENANT the party concerned shall be deemed to be bound as surety for and co-principal debtor in solidum with the company or close corporation in terms of the Suretyship in clause 41 for the due and proper fulfillment of all the obligations imposed on the SUB-TENANT in terms of this lease, any amendment, renewal or addendum hereto mutatis mutandis. Any stamp duty payable “if any” as a result thereof shall be paid by the SUB-TENANT.
The TENANT shall have the right to change the name of the building at any time and from time to time, as it considers appropriate in its sole discretion and the TENANT shall not be liable for any losses or damages suffered by the SUB-TENANT arising from or incidental to such change of name.
At the option of the TENANT any action or application concerning or arising out of this lease, or breach of this lease, or any Suretyship furnished for the obligation of the SUB-TENANT hereunder may be brought in any Magistrates Court having jurisdiction in respect of the SUB-TENANT or the sureties, as the case may be, notwithstanding that the amount in issue may exceed the jurisdiction of such Court.
The SUB-TENANT agrees to comply with the TENANT’s security and fire protection regulations which may exist in the building from time to time and shall be liable for compliance therewith by its employees and invitees.
The TENANT shall at its own cost keep and maintain the exterior structure and roof of the Premises (except the glass in the windows and doors of the Premises) in good order and condition.
The TENANT may take all such steps as it may consider necessary in its sole and absolute discretion for the maintenance and operation of the common areas, building and property.
Neither the TENANT nor the designated person 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 SUB-TENANT, its servants, invitees, agents, directors, representatives or clients may have deposited or left in the premises or in any part of the building or the property.
23.1 The TENANT and/or the designated person shall be entitled to enter the premises at all reasonable times for the purpose of inspecting the premises and for carrying out any repairs or any alterations or additions or modification or improvements on or to the building, the premises or the property or other work in respect of the premises or the building if the TENANT should desire to do so. The TENANT and/or the designated person will be entitled to erect scaffolding, hoardings and building equipment in, at, near or in front of the premises as well as such other devices required by law or which the architects may certify is necessary to carry out the work in question.
23.2 If the exercise by the TENANT of its rights hereunder would result in interference with the SUB-TENANT or the SUB-TENANT’s business, however unreasonably, it and/or the designated person shall nonetheless be entitled to exercise such rights.
23.3 The SUB-TENANT shall have no remedy in connection with the exercise by the TENANT and/or the designated person of any of the aforesaid rights.
24.1 The TENANT may but shall not be obliged to cancel this lease if –
24.1.1 the premises are destroyed or are damaged to such an extent as to be substantially UNSUB-TENANTALBE;
24.1.2 there is damage to the building such that although clause 24.1.1 does not apply, the premises have been rendered substantially UNSUB-TENANTABLE because of absence of access or supply of any necessary service or amenity; or
24.1.3 there is destruction or damage to the building or parts thereof, whether or not the premises are involved and the TENANT determines to put an end to the tenancies in the building in order to engage in reconstruction, renovation or rebuilding.
24.2 The cancellation under clause 24.1 shall be by written notice given by the TENANT within 60 days of the taking place of the event referred to in clause 24.1 giving rise to the cancellation, provided that in the case of notice given in terms of clause 24.1.1 or 24.1.2 such notice shall be deemed to be effective as from the date on which the damage or destruction as the case may be took place, and in the case of notice given in terms of 24.1.3 such notice shall be deemed to be effective on the expiration of a period of 30 days of the giving of such notice.
Any such cancellation shall be without prejudice to any rights or claims which the TENANT may have against the SUB-TENANT whether in terms hereof or otherwise.
24.3.1 there is damage to the premises or the building so as to affect the enjoyment of the premises, but not to such extent as to entitle the TENANT to cancel under 24.1; or
24.3.2 the TENANT does not exercise its right to cancel under clause 24.1 when entitled to do so,
Then the SUB-TENANT shall be entitled to a remission of rent for the period during which and to the extent to which it is deprived of beneficial occupation and enjoyment of the premises, provided that such damage was not occasioned by any act or omission by the SUB-TENANT, its directors, agents, representatives, invitees, contractors or employees.
24.4 If there is any dispute as to –
24.4.1 whether the premises have been rendered substantially UNSUB-TENANTALBE; or
24.4.2 the amount of the remission of rental and/or the extent to which the SUB-TENANT is deprived of beneficial occupation and enjoyment of the leased premises,
the decision of architects appointed by the TENANT, who will act as experts and not as arbitrators, and who shall determine the liability for their charges which shall be paid accordingly, shall be final and binding upon the parties.
24.5 In no circumstances shall the SUB-TENANT have any claim against the TENANT and/or the designated person arising out of the damage to or destruction of the building or any part thereof or the resultant loss of beneficial occupation of the leased premises and the provisions of clause 11 shall apply in such event, mutatis mutandis.
The TENANT may affix to and exhibit anywhere on the windows of the premises “TO LET” notice or notices during the period of 3 months immediately preceding the termination or expiry of this lease and during that period the SUB-TENANT shall permit incoming occupiers of the premises to exhibit on the windows of the premises any notices that may be required in connection with any application for any license to carry on business in the premises. The SUB-TENANT shall at all reasonable times during the period of this lease permit any prospective SUB-TENANTs or purchaser of the property, of which the premises form a part, or of the share capital of the TENANT, to view the interior of the premises.
26.1 the SUB-TENANT fails to pay any rent or other amount due by it to the TENANT in terms of this lease on due date; or
26.2 the SUB-TENANT commits any other breach of the terms of this lease which is incapable of being remedied; or
26.3 the SUB-TENANT commits any breach of the terms of this lease other than a breach referred to in clause 26.1 or clause 26.2 and fails to remedy that breach within 7 days after the date of a written notice requiring that it be remedied, provided that no such notice shall be necessary in the case of a second or subsequent breach of the same term; or
26.4 the SUB-TENANT so consistently breaches the terms of this lease (whether by non-payment of rent or any other amount due to the TENANT on due date or by non-compliance with its terms) as to justify the TENANT in holding that the SUB-TENANT’s conduct is inconsistent with an intention or an ability to carry out such terms; or
26.5 the SUB-TENANT allows any judgment against and known to the SUB-TENANT to remain unsatisfied for a period of 7 days or longer; or
26.6 the SUB-TENANT commits an act of insolvency within the meaning of section 8 of the insolvency Act. No. 24 of 1936, or any replacement legislation therefore; or
26.7 any surety in terms of any Suretyship granted in favour of the TENANT with respect to any of the SUB-TENANT’s obligations under this lease should –
26.7.1 being an individual or trust, die or be sequestrated whether provisionally or finally or cease to reside permanently in the Republic of South Africa or, in the case of a company or any other corporate entity, be wound up or placed under judicial management, (in either case whether provisionally or otherwise) or;
26.7.2 lawfully withdraw such Suretyship;
and the SUB-TENANT shall, within 21 days after notice to it by the TENANT, fail to furnish the TENANT with a Suretyship in replacement to the satisfaction of the TENANT
then the TENANT shall have the right, but shall not be obliged, to either –
26.8 cancel this lease and to resume possession of the leased premises;
26.9 convert this lease to one in which the TENANT (but not the SUB-TENANT who shall continue to be bound for the full period of the lease) shall be entitled to terminate the lease by giving one month’s written notice to the SUB-TENANT, the remaining terms and conditions being otherwise unaffected;
but without prejudice to the TENANT’s claim for arrears of rent and/or damages which it may have suffered by reason of the SUB-TENANT’s breach of contract or of the premature cancellation.
While for any reason or on any grounds the SUB-TENANT occupies the leased premises and the TENANT disputes its right to do so, then until the dispute is resolved whether by settlement or litigation, the SUB-TENANT shall (notwithstanding that, without prejudice to its rights, the TENANT may contend that this lease is of no force) continue to pay an amount equivalent to the total rent provided for in this lease monthly in advance on the first day of each month, and the TENANT shall be entitled, notwithstanding that the SUB-TENANT may categorize any such payment as rental, to accept and recover such payments, and such payments and the acceptance thereof shall be without prejudice to an shall not in any way whatsoever affect the TENANT’s claim then in dispute. If the dispute is resolved in favour of the TENANT, the payments made and received in terms of this lease shall be deemed to be amounts paid by the SUB-TENANT on account of damages suffered by the TENANT by reason of the unlawful occupation or holding over by the SUB-TENANT.
The TENANT and SUB-TENANT hereby waives any right of rectification in regard to this lease.
If the Suretyship in clause 41 is replaced or cancelled, then the validity of this lease shall not in any way be affected. Each of the provisions of this lease shall be considered as separate terms and conditions and in the event that this lease is effected by any legislation or any amendment thereto, or if the provisions herein contained are by virtue of that legislation or otherwise, held to be illegal, invalid, prohibited or unenforceable, then any such provisions shall be ineffective only to the extent of the illegality, invalidity, prohibition or unenforceability and each of the remaining provisions hereof shall remain in full force and effect as if the illegal, invalid, prohibited or unenforceable provision was not a part hereof.
If reference in this lease agreement is made to designated persons so as to constitute a stipulatio alteri, then such benefits and obligations may be accepted by them at any time.
The SUB-TENANT agrees that the TENANT shall be entitled to dispose of the property during this lease. The sale by the TENANT of the property during this lease shall not affect the terms of the lease in any way whatsoever nor entitle the SUB-TENANT to resile from the lease nor to claim damages as a result thereof. To the extent necessary, the SUB-TENANT irrevocably and in rem suam appoints the TENANT as its attorney and agent to sign any documentation necessary to record the assignment, by operation of law, of the lease from the TENANT to the purchaser of the property.
At the TENANT’s discretion, in the event of the premises being centrally air-conditioned, air-conditioning will not be provided after hours on weekdays and on Saturdays, Sundays or public holidays, unless by agreement with the TENANT.
33.1 Within 14 days after the commencement date of this lease the SUB-TENANT shall give the TENANT written notice of any defects in the premises (including adjacent yards) with particulars of any appurtenances which are defective or missing (even if such notice is required for information purposes only and the TENANT is not required to remedy such defects) and in the absence of such notice (or after the remedying by the TENANT of any matter complained of in the notice) the SUB-TENANT shall be deemed to have accepted the premises and appurtenances as being complete and without defect and in good order and repair.
33.2 At all times during the currency of this lease the SUB-TENANT shall care for and maintain in good order and repair the interior of the premises (including adjacent yards), the electrical, gas, drainage and sanitary works, the thermostats and air conditioning appliances and the appurtenances therein, and at the termination or expiry of the lease for whatever reason return and redeliver the same to the TENANT in good order and repair and it shall make good and repair at its own cost on demand any damage, breakages or, in the alternative, reimburse the TENANT for the cost of replacing, repairing or making good any broken, damaged or missing articles howsoever caused subject to clause 11.2. If the appurtenances and/or electrical, gas, drainage and sanitary works, stoves, thermostats, geysers and air-conditioning appliances are or become defective (for any reason including by reason of fair wear and tear), the SUB-TENANT shall be obliged to replace them at the SUB-TENANT’s expense. Without detracting from the generality of the above, the SUB-TENANT shall repair any damage caused to the premises, which may be occasioned by any cause, including forcible entry.
33.3 The SUB-TENANT shall –
33.3.1 keep all sewerage pipes, water taps and drains within or serving the premises free from obstruction or
33.3.2 at all times keep the premises in a clean, tidy and sanitary condition.
33.3.3 not be entitled to paint, affix or attach to the building any advertising signs, notices or other matter without the prior written consent of the TENANT (and any such signs, notices or other matter shall be removed by the SUB-TENANT prior to the end of its occupation of the premises and any damage caused thereby made good by the SUB-TENANT);
33.3.4 not obscure any plate glass windows by painting or otherwise;
33.3.5 not drive into the walls or partitions or doors of the premises any screws or nails in such manner as may be calculated to damage the premises;
33.3.6 not change or interfere with or overload the electrical installation in the premises;
33.3.7 not obstruct or interfere or tamper with any thermostats or air-conditioning appliances in the premises or the
33.3.8 pay for replacements of all fluorescent tubes, starters, ballasts and incandescent bulbs used in the premises;
33.3.9 not place any unsafe or heavy article in the premises without the TENANT’s prior written consent, which shall not be withheld unreasonably;
33.3.10 not install in the premises air-conditioning or ventilating units or equipment without the TENANT’s prior
33.3.11 not permit the storage of motor vehicles and bicycles, packing cases or goods of any description whatsoever on the pavement of the property or in the entrance hall, staircase or passage of the building or in the yard of any portion of the property;
33.3.12 not pack or unpack goods except within the premises.
34.1 The SUB-TENANT agrees that it shall be responsible for:
34.1.1 the safety, safe use and maintenance of the electrical installations in the premises;
34.12 the safety of the conductors connecting the electrical installations to the point of supply;
34.1.3 procuring at its own cost the issue of a valid certificate of compliance in respect of the electrical installations in the premises as contemplated in Government Notice R2920 of 23 October 1992 at the termination of this lease and after any alterations to the electrical installations in the premises have been affected.
34.2 The SUB-TENANT, to the extent that it fails to comply with the aforegoing obligations and as a result the TENANT incurs any liability, indemnifies the TENANT against all claims, damages or losses of any nature whatsoever which the TENANT may sustain as a result thereof.
34.3 Unless the SUB-TENANT shall have otherwise advised the TENANT in writing, the SUB-TENANT warrants that all goods on the premises will throughout the period of the lease be beneficially owned by the SUB-TENANT, will not throughout the period of the lease be subject to any special notarial bond registered in terms of the Security by Means of Movable Property Act, 1993 and have not been during the period of the lease be purchased in terms of a credit agreement as contemplated in the National Credit Act 2005, as amended.
The SUB-TENANT shall not at any time bring or allow to be brought or kept on the premises, nor do nor permit to be done in the premises, any matter or thing or activity 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 premiums for such insurance are increased as the result of any act or omission contemplated above, whether the TENANT’s written consent or not, the TENANT, without prejudice to any of its rights hereunder, may recover from the SUB-TENANT the amount due in respect of any additional premiums and the SUB-TENANT shall pay such amount immediately on notification from the TENANT and/or the insurance company to the effect that such additional premiums have been charged.
36.1 The SUB-TENANT shall not make any alterations or additions to the premises without the TENANT’s prior written
36.2 If it shall be a condition of any competent authority in respect of the grant or renewal of any licenses required by the SUB-TENANT to carry on the business for which the premises are hired that the premises shall be altered or renovated, the TENANT shall not be obliged, but the SUB-TENANT shall be obliged at its own expense to carry out such alterations or renovations provided that the TENANT’s prior written consent, which shall not be unreasonably withheld, is obtained and that the work is carried out by a contractor nominated by the TENANT and under the supervision of an architect nominated by it whose fees shall be paid by the SUB-TENANT.
36.3 If any alterations or improvements are made by the SUB-TENANT, the SUB-TENANT shall, before the expiry or termination of this lease, (unless the TENANT otherwise agrees in writing in which case any alterations and/or improvements shall become the TENANT’s property without any compensation being payable to the SUB-TENANT in respect thereof), remove them and reinstate the premises to the condition in which they were before the improvements and/or alterations were affected. The SUB-TENANT hereby appoints the TENANT as its agent and attorney irrevocably and in rem suam with power of substitution, to effect any such removal of the alterations and/or additions and the reinstatement of the premises as contemplated in this clause, at the cost of the SUB-TENANT, on behalf of the SUB-TENANT.
36.3.1 It is expressly recorded that the SUB-TENANT shall have no claim of any nature whatsoever for any improvements or alterations effected by the SUB-TENANT to the premises, whether such improvements were effected with or without the TENANT’s consent and the SUB-TENANT shall have no right to remove same. The SUB-TENANT furthermore hereby agrees and waives any improvement lien that he may have and hereby furthermore expressly agrees that he shall have no right to occupy the property pending the outcome of any legal or other dispute that may arise between the parties in respect of an alleged improvement lien.
36.4 If the TENANT agrees to provide additional power to satisfy the SUB-TENANT’s requirements, the SUB-TENANT shall bear all costs of installation and supply and associated fees (including consultancy fees), and charges, including charges for use thereof.
37.1 The SUB-TENANT shall be responsible for any plate or other glass, both internal and external and window panels contained in the premises, and shall be obliged at its expense to replace any such glass as may be damaged, however and by whomsoever such damage shall be caused.
37.2 The SUB-TENANT shall be obliged, except for any period during which the TENANT may elect to insure the plate glass and shop fronts itself to, insure the plate glass, window panels and shop fronts with an insurer nominated by the TENANT against damage and maintain the insurance throughout its occupation of the premises or the period of this lease. The SUB-TENANT shall on demand cede the policy of insurance to the TENANT as security for its obligations hereunder. The SUB-TENANT shall, if so required by the TENANT, exhibit to the TENANT from time to time proof of payment of the premiums that fall due, and if it fails to do so in respect of any premium the TENANT shall be entitled, without prejudice to its rights under clause 27 to pay the premium and recover it from the SUB-TENANT.
37.3 If the TENANT elects to insure the plate glass, window panels and shop fronts for any period, the SUB-TENANT shall pay to the TENANT on demand so much of each premium paid by the TENANT as is attributable to the insurance of the plate glass, window panels and shop fronts in or on the premises.
Should the SUB-TENANT fail to fulfill any obligation or to perform any act which it was obliged to fulfill or perform in terms of any clause of this lease, the TENANT shall be entitled but not obliged to fulfill such obligation or to perform such act for and on behalf of the SUB-TENANT and the SUB-TENANT shall be liable for all or any costs incurred by the TENANT thereby or as a consequence of such fulfillment or performance.
39.1 This lease constitutes the whole agreement between the parties and no warranties or representations, whether express or implied, nor stated herein shall be binding on the parties. No party shall be bound by any express or implied term representation, warranty, promise or the like not recorded herein, whether it induced the contract or not.
39.2 No amendment or consensual cancellation of this lease or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this lease shall e binding unless recorded in a written document signed by the parties.
39.3 No extension of time, waiver, indulgence or relaxation or suspension of any of the provisions or terms of this lease or of any agreement, bill of exchange or other document issued pursuant to or in terms of this lease which the TENANT and/or any designated person may have given to the SUB-TENANT shall be binding unless recorded in a written document signed by the parties. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
39.4 No extension of time or waiver or relaxation of any of the provisions or terms of this lease or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this lease, shall operate as an estoppel against any party in respect of its rights under this lease, nor shall it operate so s to preclude such party thereafter from exercising its rights strictly in accordance with this lease.
39.5 Unless otherwise stated by the TENANT in writing, the receipt by the TENANT and/or the designated person, 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 SUB-TENANT undertakes to pay on demand all costs and charges relating to the drawing of this lease (or any renewal hereof) together with the stamp duty payable “if any” (or any renewal hereof).
41.1 The SURETY does hereby bind himself jointly and severally as surety for and co-principal debtor in solidum with the SUB-TENANT as defined in this lease or any extension, amendment or renewal thereof, to the TENANT for the due fulfillment and performance by the SUB-TENANT of all its obligations to the TENANT arising out of or pursuant to this lease, including any renewal thereof. The SURETY hereby renounces the benefits of cession of action, excussion and division as well as all benefits arising from the legal exceptions non numeratae pecuniae, non causa debiti, error calculi, with the full force, meaning and effect whereof the SURETY hereby declares himself to be fully acquainted.
41.2 It is agreed and declared that all admissions and acknowledgements of indebtedness by the SUB-TENANT in regard to its obligation under this lease, including any renewal thereof, thereby shall be binding on the SURETY.
41.3 The SURETY hereby chooses domicilium citandi et executandi for all purposes at the address set out in clause 12
41.4 The SURETY hereby consents to the jurisdiction of the Magistrates Court in respect of any action or application arising out of or in connection with this lease notwithstanding that the amount in issue may exceed the jurisdiction of such Court 4 023.
41.5 Without derogating from the generality of the provisions of this Suretyship or the ambit of the obligations embraced, the SURETY’s liability shall cover all claims for compensation or damages which the TENANT may at any time have as a result of the cancellation or termination of the lease howsoever arising, including without limitation the termination of the lease between the SUB-TENANT and the TENANT (or the TENANT’s predecessor in title) which takes place pursuant to the provision of section 37 (1) of the Insolvency Act, No 24 of 1936 as amended, or, where the SUB-TENANT is a company, as applied by virtue of the provisions of the Companies Act, No 61 of 1973, as amended, or pursuant to any corresponding legislation.
41.6 In the event of –
41.6.1 any liquidation, judicial management or sequestration of the SUB-TENANT or any other surety for the SUB- TENANT; or
41.6.2 any composition or compromise by the SUB-TENANT or any such other surety, whether in terms of the company law or insolvency law or under common law,
The SURETY binds himself not to file any claim against the SUB-TENANT or other surety until the TENANT’s claim against the SUB-TENANT has been paid in full.
41.7 Notwithstanding any part payment of the SURETY or on the SURETY’s behalf, the SURETY shall have no right to any cession of action in respect of such part payment and shall not be entitled to take any such action against the SUB-TENANT or against any other surety for the SUB-TENANT in respect thereof unless and until the indebtedness of the SUB-TENANT to the TENANTD shall have been discharged in full.
41.8 The SURETY acknowledges that all amounts due and payable by the SUB-TENANT to the TENANT shall be recoverable from and paid by the SURETY notwithstanding that the SUB-TENANT may have any claim or counterclaim of whatsoever nature and howsoever arising against the TENANT.
41.9 The TENANT shall be at liberty without in any way affecting its rights against the SURETY or diminishing or otherwise affecting the SURETY’s obligations to it hereunder, to do any act or omit to do any act, whether pursuant to the provisions of the lease concluded with the SUB-TENANT or otherwise, as it in its sole discretion may deem fit, notwithstanding that in doing or omitting to do any such acts, the TENANT may have acted negligently (whether grossly or otherwise) or in a manner calculated to cause, or in fact causing, prejudice to the SURETY and, in particular, but without limiting the generality of the aforegoing, the TENANT shall without in any way affecting its rights against the SURETY or diminishing or otherwise affecting the SURETY’s obligations to it hereunder e entitled to the SURETY or diminishing or otherwise affecting the SURETY’s obligations to it hereunder be entitled to –
41.9.1 release securities and other sureties; and
41.9.2 give time to or compound or make any other arrangements with the SUB-TENANT or other parties aforesaid;
41.9.3 allow or grant the SUB-TENANT or any other surety any latitude or indulgence, without reference to or approval by the SURETY.
41.10 If for any reason any surety named herein shall fail to sign this lease for any reason whatsoever or if this Suretyship shall for any reason cease to be or is not binding on any one of the sureties, then the obligations of the other/s shall be and continue to be binding and remain of full force and effect in terms hereof.
41.11 The provisions of Clause 9 of this lease shall apply mutatis mutandis to the SURETY’s indebtedness under this
42.1 The TENANT may terminate this lease or any renewal thereof by giving the SUB-TENANT six (6) calendar months written notice to such effect in all or any of the following circumstances:
42.1.1 should the TENANT wish to demolish the building or the premises; or
42.1.2 should the TENANT 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; or
42.1.3 should the TENANT sell or dispose of the building in which the said premises are situated; or
42.1.4 should the shares of the TENANT’s company be sold or disposed of.
42.2 The TENANT shall, however, have the right at any time to commence the reconstruction and/or redevelopment and/or renovation of the building, other than the premises, and these operations may proceed while the SUB-TENANT is in occupation of the premises.
42.3 Notwithstanding the implementation of any work as contemplated in 42.2 above, the SUB-TENANT shall have no right to object to such work or to claim any rebate of rental and costs during the period in which the said work may be in progress.
42.4 At the expiration of the said period of six months, the lease shall cease and terminate in like manner as if the same had expired by effluxion of time, and the SUB-TENANT shall have no claim or right or actions against the TENANT for damages or otherwise, by reason of such cancellation.