AGREEMENT OF LEASE
THE …….. TRUST
(Trust Number: ……../20..)
………..( Proprietary ) Limited
(Registration Number: ……………………. )
- The Lessor is The ………. Trust, a trust duly registered in terms of the laws of South Africa, with trust number ………/20.. (“the Lessor”).
- The Lessee is ………… (Proprietary ) Limited, a company duly registered in terms of the laws of South Africa, with company registration number ………………… (“the Lessee”).
- clause headings are for reference purposes only and shall not influence its interpretation;
- references to the masculine gender shall include the feminine and neuter genders and vice versa;
- references to natural persons shall include bodies corporate and other legal personae and vice versa;
- references to the singular shall include the plural and vice versa;
- all annexures hereto shall be deemed to be incorporated herein and shall form an integral part hereof;
- where a number of days is prescribed, the period shall be reckoned exclusively of the first and inclusively of the last day;
- where the day upon or by which any act is required to be performed is not a business day, the parties shall be deemed to have intended such act to be performed upon or by the first business day thereafter;
- where an expression has been defined (whether in 2.2 hereunder or elsewhere in the lease) and such definition contains a provision conferring rights or imposing obligations on any party, effect shall be given to that provision as if it were a substantive provision contained in the body of this lease;
- any reference to the period, currency, unexpired period, termination or date of termination of this lease, shall include any renewal or extension thereof;
- any reference to the Lessor shall include the Lessor and his successors-in-title and his respective agents, employees, servants, contractors and workmen;
- any reference to the Lessee shall include the Lessee’s agents, employees, servants, customers, clients, licensees, contractors, invitees, visitors and guests;
- if figures are referred to in numerals and words, the words shall prevail in the event of any conflict between the two.
- In this lease, unless inconsistent with or otherwise indicated by the context, the following expressions shall bear the meanings assigned to them hereunder and cognate expressions shall bear corresponding meanings:
- “the property” ………………………………………………….
- “the building” collectively, all improvements erected on the property
- “the leased premises” collectively, the property and the building
- “the commencement date” shall be 1 …. 20..
- “this lease” collectively, this schedule and any annexures
- “Office/s” A room, set of rooms or a building utilised for the performance of an administrative function or the conducting of an enterprise primarily associated with administrative, clerical, financial or professional duties but shall exclude a banking hall, medical rooms and a place of instruction.
- “POA” The ……………Property Owners’ Association.
- “annual escalation rate” The rate by which the previous years rental shall be escalated for the following year of the lease. This rate shall be 9% per each year.
- The Lessor is the registered owner of the property.
- The Lessor and the Lessee have agreed to the letting and hiring respectively of the leased premises, subject to all of the provisions, terms and conditions contained in this lease.
The Lessor hereby lets and the Lessee hereby hires the leased premises.
- Notwithstanding the date of signature hereof, this lease shall commence on the commencement date.
This lease shall endure for a period of 3 years from the commencement date. There will be no extensions to the lease and the Tenant is to depart from the premises by the latest on the last day of the lease period. The tenant agrees that there will be no entitlement on their part to any legal contestation to this and that the landlord shall automatically be entitled to occupy the entire premises. The premises shall at this date be left exactly as when occupation at commencement took place.
If the Lessee remains in occupation for any reason approved in writing by the Landlord, after the expiry date of this lease, then, notwithstanding anything to the contrary contained herein, the Lessee’s occupation of the premises shall be deemed to be on a monthly tenancy subject to three calendar month’s written notice to be given by either party to the other; provided that the monthly rental payable by the Lessee to the Lessor after the expiry date of this lease shall be an amount equivalent to the rental payable by the Lessee during the month immediately preceding the expiry date, escalated at the annual compound escalation rate. Save for the aforegoing, such monthly tenancy shall be on the same terms and conditions of this lease.
The monthly rental payable in respect of the leased premises shall be:
- R……… (…………………………………) per month excluding Value Added Tax. This amount includes .. (…) covered parking pays and .. (…) visitors’ bays. The bays wills be allocated by the Landlord.
- The annual escalation rate will be applied to the then rental amount on 1 …………… every year and this amount will be added to the rental payable.
- All payments to be made in terms of this lease shall be payable without deduction on the 1st business day of each month to which the rental relates, free of exchange to the Lessor’s nominated banking account by electronic transfer or cheque deposit.
- If the Lessee fails to make payment to the Lessor of any amount payable by him in terms of this lease, then the Lessor may, without prejudice to any other rights and remedies which it may have, recover interest from the Lessee on the amount outstanding at the Prime Overdraft Rate charged by ……………. Bank prescribed from time to time plus 2%.
- A certificate signed by the Lessor of the amount due by the Lessee and the date on which it is payable in terms hereof, shall be prima facie evidence of the correctness of the contents thereof.
- The Lessee shall pay a deposit equal to three months’ rental plus Value Added Tax to the Lessor on signature hereof. The lessor currently holds a deposit approximately equal to two months’ rental plus Value Added Tax.
- The Deposit will be invested in an interest bearing call account.
- The Deposit, together with interest thereon, will be security for the Lessee’s obligations in terms of this lease, including any cancellation thereof.
- The Deposit, together with interest thereon, but after deduction of all amounts owing by the Lessee to the Lessor, will be repaid by the Lessor to the Lessee within 30 days after this lease terminates for any reason whatsoever.
- USE OF THE LEASED PREMISES
- The Lessee shall use the leased premises for Offices.
- In making use of the leased premises, the Lessee and any of its employees, agents, representatives and/or patrons shall at all times obey and respect all laws, regulations and/or by-laws applicable to the type of business run by the Lessee and the premises occupied by it. In particular the POA Regulations as published on the website “centurycity.co.za” and any other determinations made by the POA must be adhered to, to the extent that such determinations are lawful and have been communicated to the lessee.
- The Lessee hereby indemnifies the Lessor and holds it harmless in respect of any and all loss or claims from third parties it may suffer as a result of the conduct of the Lessee’s employees, agents, representatives and/or invitees from time to time, including any damage or loss sustained to the building and the parking area and appurtenances thereof or attachments thereto.
- The Lessee shall conduct its business at all times in such a manner as to refrain from interfering in any way with the business of the Lessor or of any company, close corporation, or business entity or person which occupies any other premises within the building.
The Lessee shall pay for upon receipt of statements from the Lessor:
- charges for the use of electricity;
- all refuse removal fees levied on the leased premises;
- all sewer effluent and sanitary fees levied on the leased premises;
- all water consumption charges (including meter reading charges) levied on the leased premises;
- notwithstanding anything to the contrary contained herein, should the amount of the rates and taxes payable in respect of the premises be increased at any time during the currency of this lease by an amount higher than the annual escalation rate of rental in terms of this agreement, then the rental payable by the Lessee for the premises shall ipso facto be increased by the amount the rates and taxes increased above such escalation rate of rental.
- The charges listed above will be calculated by taking the total amount billed from the municipality and apportioning this charge in the ratio of the area occupied over the total lettable area of the building. Should the lessor install separate meters, then the meter readings shall be used as a basis for calculating the relevant charge.
- STRUCTURAL ALTERATIONS AND REPAIRS
- The Lessor and its agents shall have the right to enter and to effect structural alterations and/or repairs and/or maintenance to the leased premises at all reasonable times and after having given reasonable notice to the Lessee. It is envisaged that the Lessee will, of necessity, suffer some inconvenience as a result of the carrying out of such structural alterations and/or repairs and the Lessor shall accordingly endeavour to ensure that as little inconvenience as is reasonably possible is caused to the Lessee thereby. The Lessee shall not, however, be entitled to claim remission of or reduction in rental or cancellation of this lease by reason of the structural alterations and/or repairs and/or maintenance, save in the event of the Lessee suffering any damages as a result of such structural alterations and/or repairs. Notwithstanding anything aforesaid, the Lessee shall be entitled to cancel this Agreement in the event of any work carried out by the Lessor, preventing the Lessee from conducting its business, in which event neither party shall have any claim against the other.
- The Lessee shall not make any alterations or additions to the exterior of the premises, whether structural or otherwise, including the colour scheme or the paintwork or the signage, without the written consent of the Lessor having first been obtained, which consent shall not be unreasonably withheld.
- The Lessee shall, however, be entitled to erect such fixtures and fittings in the interior of the premises as it may require in its business, and to remove such fixtures and fittings on the termination of the Lease at the request and instance of the Lessor.
- On termination of the lease the Lessee shall be required to remove all alterations or fittings installed by it at its own cost and leave the interior of the building in a fit and proper condition with painted walls and no damage. The following items may not be removed as they are the property of the Lessor:
- .. x ……. air conditioning units.
- .. ……………………………….. air conditioning units ………………….
- .. no …… x ….mm recessed light fittings wired to switches at the entrance.
- Light fittings and switches in toilet, passage and kitchen area.
- Toilet fitted out for paraplegic requirements.
- Smoke detectors.
- Hose reels and fire extinguishers.
- Ceilings throughout.
- Power skirting around perimeter with 10 clusters of 2 power points, a telephone point and a data point.
- Toilets fully equipped with bowls, basin and taps. Tiles to floor and walls.
- Kitchen equipped with sink and taps, 2 plug points. Tiles to floor and walls.
- Doors and ironmongery to toilet, kitchen and passage.
- Shell of building complete with plastered and painted walls and doors and windows.
- INSURANCE OF THE BUILDING
The Lessor shall be responsible for the insurance of all of the buildings and improvements on the property.
The parties have agreed that the Lessor shall be entitled to sub-let the parking bays to third parties. Save as aforesaid, the Lessee shall not sub-let the leased premises or any portion thereof nor cede or assign or pledge this lease or any of its rights hereunder without the Lessor’s prior written consent, which, in the case of sub-letting only, shall not be unreasonably withheld. The Lessee shall further not give up occupation or possession of the leased premises or any portion thereof to any person, whether as licensee, agent, occupier, custodian or otherwise, nor permit such person to enter into possession or to occupy or take possession of the leased premises or any portion thereof for either a definite period or at all, without the Lessor’s prior written consent.
- MAINTENANCE AND CONDITION OF LEASED PREMISES
The Lessee shall within reason do all things necessary to:
- prevent any blockage of any sewerage or water pipes or drains in or used in connection with the leased premises;
- remove at its cost any obstruction or blockage referred to in 16.1 above which occurs in the leased premises; only in the event of such obstruction or blockage having been caused by the Lessee;
- during the operation of this lease, care for and maintain the interior of the leased premises and all the keys, locks, doors, windows, sewerage pans and pipes, electrical installations, air-conditioners, geysers, water taps, and appurtenances therein in good order and condition, and at the termination thereof return and redeliver the same to the Lessor in like good order and condition, fair wear and tear excepted, and it shall make good and repair it its own cost any damage or breakages or in the alternative, reimburse the Lessor for the cost of replacing, repairing or making good any broken, damaged or missing items; save in the event of the Lessee or any of its agents employees, representatives and/or invitees not having been the cause of such damage, breakage or missing items;
- clean the interior of the leased premises and the entrance staircase leading thereto;
- insure and keep insured, to the full replacement value, all its fixtures, fittings and installations and all goods on the leased premises;
- maintain adequate public liability insurance;
- not make any alterations or additions to the premises without the Lessor’s prior written consent, which consent shall not be unreasonably withheld. All proposed alterations shall be submitted to the Lessor for its approval and in the event of the Lessor approving same; the parties shall co-operate and jointly nominate the builder and/or subcontractors to give effect to such alterations and/or additions. The costs of such builders or sub-contractors shall be borne by the Lessee. If any alterations or additions are made by the Lessee, it shall be obliged, at the expiry or termination of this lease, unless the Lessor otherwise agrees in writing (in which case any such alterations or improvements shall become the Lessor’s property), to remove and reinstate the leased premises to the condition in which they were prior to the alterations or additions being effected. The Lessee shall under no circumstances have any claim for compensation for any such alterations or additions whether or not they are removed or the leased premises reinstated. The Lessee shall under no circumstances have any claim for compensation for any such alterations or additions whether or not they are removed or the leased premises reinstated.
- pay for the replacement of all fluorescent bulbs, starters and incandescent bulbs used in the leased premises;
- have no claim whatsoever, whether for damages or remission of rental or cancellation of this lease, against the Lessor, nor be entitled to withhold or defer payment of rent by reason of any suspension or interruption in the supply of water or electricity (howsoever such suspension or interruption may arise) or by reason of amenities in or on the leased premises being out of use or out of order for any reason whatsoever and for any period whatsoever; save in the event of any such suspension, interruption or loss of use of amenities having been caused through any actions or omissions of the Lessor;
- not permit the accumulation of refuse in or outside the leased premises, save in the municipal refuse bins which shall be stored in such place as the Lessor may from time to time designate;
- not drive or permit to be driven into the walls or ceiling of the leased premises nails, screws or any other object save as may be reasonably required for the Lessee’s shelving or fixtures and fittings which fixtures and fittings will be fixed to the walls by a method prescribed by the Lessor. On the termination of this lease, the Lessee shall restore any damage done to the leased premises and the Lessee shall not permit anything whatsoever to be done therein or thereon which may be calculated to damage the walls, ceiling or any other portion of the leased premises.
- ensure at all times that no nuisance emanates from the premises, provided that the aforegoing shall not preclude the Lessee conducting the normal and ordinary course, the nature of business which it is allowed in terms hereof to conduct in the premises. Should the Lessor be of the opinion that the Lessee is causing a nuisance and/or interference, the Lessee shall be required within 14 (fourteen) days after receipt of written notice to that effect, cease such nuisance and interference, failing which the Lessee shall be in breach of the Lease.
- provide the Lessor once a year with a certificate from the relevant authority stating that the fire hydrant and fire extinguishers have been serviced and are in full working order. This to take place prior to the anniversary of the previous service. The Lessee to inform the Lessor in writing of when this is completed.
- service the air-conditioners once a year using a company approved by the Lessor and provide proof to the Lessor of this. This to take place prior to, or on the anniversary of the previous service. The Lessee to inform the Lessor in writing of when this is completed.
The Lessee shall:
- comply with all laws, by-laws and regulations relating to the conduct of its business in the leased premises;
- not contravene or permit the contravention of any of the conditions of title under which the property is held by the Lessor or any of the provisions of the Town Planning Scheme applicable to the property.
The parties have agreed that the Lessee shall mount a clearly visible sign on the outside of the building, the placement of which shall be determined by the Lessee subject to the costs and approval of the POA. Save as aforesaid, the Lessee shall not affix or mount posters, advertisements, or temporary notices of whatsoever nature on any part of the exterior of the leased premises without the Lessor’s prior written consent and its written approval of the situation, size and design thereof, which consent shall not be unreasonably withheld.
The Lessee shall not at any time bring or allow to be brought or kept on the leased premises, nor do, nor suffer to be carried on in the leased premises, any matter or thing or activity whereby the fire or any other insurance policy of the leased premises may be liable to become void or voidable, to the extent that the Lessee is made aware of the provisions of the Lessor’s insurance policy.
The Lessor shall only be responsible for the following:
- the repair of structural defects in the building;
- insurance of the building;
- payment of assessment rates and taxes in respect of the property;
- payment of the POA levies;
- maintenance of the exterior of the premises and outside roofs and walls of the building.
- TO LET NOTICES AND ACCESS
- The Lessor shall be entitled to enter the leased premises after furnishing the Lessee with reasonable notice, at all reasonable times, either through its representatives or servants or through contractors, for the purpose of inspecting the premises or for carrying out any structural repairs or other work if it should desire to do so. The Lessor shall, in exercising its rights as aforesaid, not unduly or unreasonably interfere with any activity lawfully carried on in the leased premises and shall carry out any structural repairs or other work as expeditiously as possible. The Lessee shall not have any claim for remission of rent, compensation or damages in connection with the exercise by the Lessor of any of its aforesaid rights.
- The Lessee shall upon reasonable notice having been furnished to it:
- at all reasonable times permit prospective Purchasers of the property to view the interior of the leased premises; and
- during the period of 6 (six) months immediately preceding the termination or expiry of the lease period, permit prospective tenants to view the interior of the leased premises during reasonable hours of the day, which prospective tenants shall at all times be accompanied by representatives of the Lessee, and the Lessor or any incoming tenant to exhibit on the windows or walls of the leased premises any notice that may be required in connection with any application for any licence to carry on business in the premises.
- The Lessor may affix to and exhibit on the windows of the leased premises a “To Let” notice or notices during the period of 6 (six) months immediately preceding the termination of the expiry of this lease.
- DAMAGE TO OR DESTRUCTION OF BUILDING OR LEASED PREMISES
- For the purposes of this clause:
The building shall be deemed to be rendered partially untenantable if less than 50% (fifty per centum) of the area thereof is destroyed or damaged by fire or other cause; and the building shall be deemed to be rendered substantially untenantable if 50% (fifty per centum) or more of the area thereof is destroyed or damaged by fire or other cause or if any utility or facility in respect of the leased premises (of whatsoever nature) material to the operation of the Lessee’s business is destroyed or damaged, such that the Lessee cannot effectively conduct its business. The Lessee and Lessor shall jointly appoint an impartial architect to assess whether the building is partially or substantially untenantable.
- If the building is rendered partially untenantable, the Lessor shall expeditiously reinstate it substantially to its form before the damage or destruction and the Lessee shall be entitled to a remission of rent according to the extent and the time during which it is deprived of beneficial occupation of the leased premises. If the building is rendered substantially untenantable, the Lessee shall have the right to cancel this Agreement immediately, in which event neither party shall have any claim against the other.
- The Lessee shall at his own expense, insure the stock, fixtures and fittings therein contained, against destruction by fire and should a conflagration take place in the leased premises, the Lessee shall within a reasonable time restore the leased premises and recommence trading.
- INDEMNITY AND LIABILITY OF LESSOR
- Neither the Lessor nor its agents or employees shall be liable for any damage or injury (including loss of life) which may be caused to any of the assets of the Lessee, including stock-in-trade, fixtures, fittings, books, papers or otherwise on the leased premises, or to the Lessee or its employees, students or invitees in consequence of the overflow of water supply or any leakage or of any fault in the plumbing works or any electrical fault or by reason of any of the elements of the weather or failure on the part of the Lessor or its agents or employees to carry out any work required of any of them in a proper manner or by reason of any defect in the leased premises or any portion of any of the equipment of the Lessor, or as a result of any cause whatsoever, and the Lessee hereby indemnifies the Lessor and holds it harmless against any claim by its employees, students or invitees in respect of any such damage, injury or loss of life, save in the event of reckless or wilful conduct on the part of the Lessor.
- The Lessee shall have no claim of any nature whatsoever whether for damages, remission of rent or otherwise, against the Lessor, for any failure of or interruption in the supply of water, electricity or other amenities provided to the leased premises, save as is caused by reckless or wilful conduct on the part of the Lessee.
- Should any party to this agreement breach any terms or this agreement and fail to remedy such breach within 14 (fourteen) days or a reasonable period after receipt of a notice in writing calling upon it to do so, or should any party be placed in liquidation, whether provisional or final and whether voluntary or compulsory, or under judicial management, whether provisional or final, or should any parties suffer a default judgment to be entered against it and fail within 14 (fourteen) days or a reasonable period after such judgment comes to its knowledge to satisfy or take steps to rescind or appeal same, the aggrieved party shall be entitled but not obliged, notwithstanding any previous waiver or anything to the contrary contained, to either to:
- in the event of the Lessee being in breach, forthwith and without notice to cancel this lease and to resume possession through lawful means of the leased premises, without prejudice to its claim for arrears of rent and other amounts owing hereunder or for damages which it may have suffered by reason of the Lessee’s breach of contract or of the said cancellation; or
- vary this lease by making it thereafter terminable on one month’s written notice given by either party; or
- in the event of the Lessee being in breach, re-enter the leased premises, through lawful means and remove all persons and/or property from the leased premises. Any property so removed shall be stored at the cost and at the risk of the Lessee. The Lessee hereby irrevocably constitutes the Lessor as its agent for effecting the sale of any such goods and for effecting any of the aforegoing purposes; or
- cancel this lease and claim direct damages suffered of whatsoever nature arising from the breach; or
- claim specific performance, without any prejudice to any other rights it may have in law.
- If the Lessor cancels this lease and the Lessee disputes the Lessor’s right to cancel and remains in occupation of the leased premises, the Lessee shall, pending settlement of such dispute, either by negotiation or litigation, continue to pay (without prejudice to its rights) an amount equivalent to the monthly rent together with all the other charges provided for in this lease, monthly and in advance on the first day of each month and the Lessor shall be entitled to accept and recover such payments, and such payments and the acceptance thereof shall be without prejudice to and shall not in any way whatsoever affect the Lessor’s claim of cancellation then in dispute.
At the option of either party, any action or application arising out of this lease may be brought in any Magistrates’ Court having jurisdiction in respect of either party, notwithstanding that the amount in issue may exceed the jurisdiction of such Court.
- RELATIONSHIP BETWEEN THE PARTIES
- It is agreed between the parties hereto that the agreement shall not be construed as constituting the Lessee as agent for the Lessor for any purpose whatsoever.
- The Lessee shall not incur any obligations on behalf of the Lessor.
- The Lessee shall not be entitled to collect or receive any payments owing to the Lessor, unless requested to do so in writing by the Lessor, whereupon the payments are to be paid directly to the Lessor immediately upon receipt.
No party may rely on any representation that allegedly induced that party to enter into this agreement, unless the representation is recorded in this agreement.
No latitude, indulgence or any other similar act by either party in enforcing any provision of this agreement shall constitute a variation or novation of this agreement, or a waiver of, or estoppel in respect of its rights in terms of this agreement.
The signatories to this agreement warrant that they are duly authorised to sign this agreement on behalf of the parties hereto.
- DOMICILIUM CITANDI ET EXECUTANDI
- The parties choose as their domiciliacitandi et executandi for all purposes under this lease, whether in respect of Court process, notices or other documents or communications of whatsoever nature, the following addresses:
The Lessor: ________________________________________
The Lessee: ________________________________________
- Any notice or communication required or permitted to be given in terms of this lease shall be valid and effective only if given in writing and delivered by hand or sent by registered post.
- Either party may by notice to the other, change the physical address chosen as its domiciliumcitandi et executandi to another physical address in the Republic of South Africa, provided that the change shall only become effective on the seventh day after receipt of the notice by the addressee.
- Any notice to a party which is:
- sent by prepaid registered post in a correctly addressed envelope to it at its domiciliumcitandi et executandi shall be deemed to have been received on the fifth day after posting (unless the contrary is proved);
- delivered by hand to a responsible person during ordinary business hours at its domiciliumcitandi et executandi shall be deemed to have been received on the day of delivery.
In the event of either party instructing its Attorneys to take measures for the enforcement of any of its rights under this lease and being successful in this regard, the offending party shall pay to the aggrieved party such collection charges and other legal costs, on the Attorney and own client scale, as shall lawfully be charged by such Attorneys to the aggrieved party, on demand therefore by such party.
- The costs of preparing this lease shall be borne by the Lessor. The Lessee shall bear the costs of its attorneys’ reviewing the lease.
SIGNED AT …………………………ON THIS DAY …………. OF ………………………20..
- _____________________________ ________________________________
Name: ………………………………… Name of representative of Lessor:
ID Number: ………………………….. Designation: ………………………………
ID Number: …………………………..
SIGNED AT …………………………ON THIS DAY …………. OF ………………………20..
- _____________________________ ________________________________
Name: ………………………………… Name of representative of Lessee:
ID Number: ………………………….. Designation: ………………………………
ID Number: …………………………..