ETHEKWINI MUNICIPALITY
DRAFT LEASE CONTRACT
ADDINGTON BEACH RESTAURANT SPU2010/B01REVA
DRAFT LEASE AGREEMENT
between
THE ETHEKWINI MUNICIPALITY
(the "Landlord")
and
------------------------------------------
(the "Tenant")
2
INDEX
LEASE AGREEMENT SCHEDULE
1
1.1
Administrative Information .................................................................................................................5
Parties ..........................................................................................................................................5
1.1.1
Landlord Information ...............................................................................................................5
1.1.2
Tenant Information ..................................................................................................................5
1.1.3
Sureties' Information ...............................................................................................................6
1.2
Property Description .....................................................................................................................6
1.3
Premises ......................................................................................................................................6
1.4
Lease Period ...............................................................................................................................6
1.5
Renewal Period ............................................................................................................................6
1.6
Rental and Other Charges ...........................................................................................................7
1.7
Basic Rental Schedule .................................................................................................................7
1.8
Annual Turnover Rental ...............................................................................................................7
1.9
Turnover Warranties ....................................................................................................................7
1.10
Purpose For Which Premises Are Let ..........................................................................................7
1.11
Business Hours ............................................................................................................................7
2
Letting and Hiring ..............................................................................................................................8
3
BEE Status of Tenant ........................................................................................................................8
4
Incorporation Of Schedule .................................................................................................................8
APPENDIX A : GENERAL TERMS AND CONDITIONS OF LEASE
1
Definitions and Interpretation ............................................................................................................2
1.1
Definitions ...............................................................................................................................2
1.2
Interpretation ...........................................................................................................................3
2
Preamble ...........................................................................................................................................4
3
Letting and Hiring ..............................................................................................................................4
4
Commencement and Duration ..........................................................................................................4
5
Occupation ........................................................................................................................................4
6
Lease Renewal ..................................................................................................................................5
6.1
Option ......................................................................................................................................5
6.2
Temporary Lease After Expiration Date Where Tenant Remains In Occupation ...................5
7
Deposit, Suretyship, Rental and Other Charges .....................................................................6
7.1
Deposit ....................................................................................................................................6
7.2
Rent .........................................................................................................................................6
7.3
Charges In Respect Of Electricity, Gas and Water Consumption ..........................................7
7.4
Payment and Interest ..............................................................................................................7
8
The Tenant's General Obligations ..........................................................................................7
8.1
Manner Of Using Premises .....................................................................................................7
3
8.2
Liquor License .........................................................................................................................9
8.3
Litter and Refuse .................................................................................................................. 10
8.4
Business Hours .................................................................................................................... 10
8.5
Licences and Permits ........................................................................................................... 10
8.6
Maintenance By The Tenant ................................................................................................ 11
8.7
Electrical Fittings .................................................................................................................. 11
8.8
Insurance ............................................................................................................................. 12
8.9
Non-Exclusivity Of Facilities ................................................................................................. 12
8.10
Advertising and Signs .......................................................................................................... 13
8.11
Use Of The Landlord's Intellectual Property ........................................................................ 13
8.12
Sub-Letting, Cession and Transfer Of Ownership ............................................................... 13
9
Premises .............................................................................................................................. 15
9.1
Fitness of the Premises........................................................................................................ 15
9.2
Measurement Of The Premises ........................................................................................... 15
9.3
Damage Or Destruction ....................................................................................................... 16
10
Fit-Out and Alterations ......................................................................................................... 16
10.1
Installation Specifications / Allowance ................................................................................ 16
10.2
Alterations By The Tenant ................................................................................................... 17
10.3
Alterations By The Landlord ................................................................................................. 17
10.4
Re-Building ........................................................................................................................... 18
11
Landlord's Right To Inspect and Advertise The Premises ................................................... 18
12
Landlord's Agent .................................................................................................................. 18
13
Exclusion Of Liability ............................................................................................................ 19
14
Breach .................................................................................................................................. 19
15
Resolution Of Disputes ........................................................................................................ 21
16
Notices and Domicilia........................................................................................................... 22
17
Miscellaneous ...................................................................................................................... 23
17.1
Determination By Architect .................................................................................................. 23
17.2
Signature By Landlord.......................................................................................................... 23
17.3
Auditors' Certificate .............................................................................................................. 23
17.4
Enforcement By Landlord..................................................................................................... 23
17.5
Company Or Close Corporation To Be Formed .................................................................. 24
17.6
Liabilities Of Partners ........................................................................................................... 25
17.7
Cession Of Lease By Landlord ............................................................................................ 25
17.8
Warranty Of Authority........................................................................................................... 25
17.9
Value-Added Tax ................................................................................................................. 25
17.10
Confidentiality ....................................................................................................................... 25
17.10.1
Confidentiality Of Transaction.................................................................................... 25
4
17.10.2
Confidentiality In Respect Of Information .................................................................. 26
17.11
Independent Advice ............................................................................................................. 26
17.12
Implementation and Good Faith .......................................................................................... 26
17.13
Further Assurances .............................................................................................................. 27
17.14
Whole Agreement ................................................................................................................ 27
17.15
Variation ............................................................................................................................... 27
17.16
Relaxation ............................................................................................................................ 27
17.17
Costs .................................................................................................................................... 27
APPENDIX B: FLOOR PLAN
APPENDIX C: PROPERTY LOCALITY PLAN
APPENDIX D: DRAFT LANDLORD'S RESOLUTION
APPENDIX E: DRAFT TENANT'S RESOLUTION
APPENDIX F: SURETYSHIP .................................................................................................................. 1-6
APPENDIX G: TURNOVER RENTAL SCHEDULE
1
Definitions ..........................................................................................................................................2
2
Annual Turnover Rental ....................................................................................................................2
3
Statement Of Turnover ......................................................................................................................2
4
Notification Of Monthly Turnover and Transactions ..........................................................................3
5
Payment Of Turnover Rental.............................................................................................................3
6
Adjustment Of Additional Monies ......................................................................................................3
7
Broken Period On Termination ..........................................................................................................3
8
Inspection ..........................................................................................................................................3
9
Confidential Information ....................................................................................................................4
10
Minimum Turnover ............................................................................................................................4
5
LEASE AGREEMENT SCHEDULE
This Lease is made and entered into between (1)
The eThekwini Municipality; and
(2)
-------------------------------------
The Parties agree as follows:
1
1.1
1.1.1
ADMINISTRATIVE INFORMATION
Parties
Landlord Information
Landlord:
Domicilium Address:
Postal Address:
1.1.2
Telephone Number:
Facsimile Number:
VAT Registration Number:
Tenant Information
The eThekwini Municipality
Strategic Projects Unit
Loram House
70 Masabalala Yengwa Avenue
Durban
4001
Strategic Projects Unit
Loram House
70 Masabalala Yengwa Avenue
4001
031-311 4745
031-368 3150
4880193505
Tenant:
Registration Number:
Domicilium Address:
Postal Address:
Telephone Number:
Facsimile Number:
Cell Number:
E-mail Address:
VAT Number:
6
1.1.3
Sureties' Information
Surety:
Identity / Registration Number:
Domicilium Address:
Postal Address:
Telephone Number:
Facsimile Number:
Cell Number:
Surety:
Identity / Registration Number:
Domicilium Address:
Postal Address:
Telephone Number:
Facsimile Number:
Cell Number:
1.2
Property Description
The property, on which the Restaurant is located, is described as Erf 12281, Durban Township,
Registration Division FU, KwaZulu-Natal Province.
1.3
Premises
The subject matter of this Lease are the Premises described below:
Description
of
Restaurant Premises:
Internal Floor
Measuring:
Outdoor Seating
1.4
Area
Upper and Lower Ground Floor restaurant levels, together with backof-house facilities and outdoor seating areas, the extent and location
of which are shown on Appendix B and C respectively.
375 m2
240 m2
Lease Period
Commencement Date:
Termination Date:
Duration of Period:
Beneficial Occupation Date:
1.5
1 June 2011, or 1st day of trading, whichever is the earlier.
5 (five) years
Renewal Period
Commencement Date of Renewal Period:
Duration of Renewal Period:
7
3 (three) years
Subject to the provisions of clause 6 of Appendix A.
1.6
Rental and other Charges
Deposit:
R 50,000.00
Tenant's Public Liability Insurance Cover:
VAT thereon:
1.7
R 2,000,000.00
Basic Rental Schedule
PERIOD FROM
PERIOD TO
MONTHLY
RENTAL
VAT
TOTAL
RENTAL
Based on an escalation of 8% (eight per cent) per annum, compounded.
1.8
Annual Turnover Rental
.......... per cent) of the Turnover, payable, to the extent that it exceeds the basic rental for the
relevant year and for zero rental period within the first year, as provided for in Appendix G.
1.9
Turnover Warranties
Subject to the provisions of Appendix G
1.9.1
the minimum annual Turnover in the 1st Year of trading of the Tenant referred to in 10.1.1 of
Appendix G, shall be an amount of R________ (_________ rand); and
1.9.2
the escalation percentage referred to in 10.1.2 of Appendix G, shall be 8% (eight per cent).
8
1.10
Purpose for which Premises are let
Restaurant, ..................................
1.11
Business Hours
Minimum trading hours: Opening within 1 (one) hour of sunrise and closing no earlier than 1
(one) hour after sunset.
2
LETTING AND HIRING
The Landlord lets to the Tenant which hires the Premises from the Landlord, on the terms and
conditions contained in this Lease.
3
BEE STATUS OF TENANT
The representations made by the Tenant, as part of its tender relating to this Lease, in respect of
its Black Economic Empowerment status shall be deemed to constitute a part of this Lease and
any “negative change” which, in the reasonable opinion of the Landlord, materially compromises
such status, shall constitute a material breach of this Agreement. The Tenant shall keep the
Landlord informed of any changes, from time to time, as contemplated herein.
4
INCORPORATION OF SCHEDULE
This Schedule and the Appendices referred to in 4.1 to 4.8 below shall together constitute the
Lease.
4.1
Appendix A - General Terms and Conditions of Lease
4.2
Appendix B - Floor Plans
4.3
Appendix C - Property Sketch Plan
4.4
Appendix D - Landlord's Resolution
4.5
Appendix E - Tenant's Resolution
4.6
Appendix F - Suretyship
4.7
Appendix G - Turnover Rental Schedule
9
SIGNATURE BELOW CONSTITUTES SIGNATURE OF THE LEASE; WHICH IS COMPRISES OF THE
SCHEDULE AND APPENDICES
Signed by the Landlord at ................. on this the .......................... day of .................................... 2010
________________________________________
Duly Authorised
Name:
.........................................................
Designation:
.........................................................
For:
THE ETHEKWINI MUNICIPALITY
Signed by the Tenant at ________ on this the ... day of __________ 2010
________________________________________
For:
Duly Authorised
Name:
ID Number:
Designation:
10
TENANT
APPENDIX A
GENERAL TERMS AND CONDITIONS OF LEASE
1
APPENDIX A
GENERAL TERMS AND CONDITIONS OF LEASE
1
1.1
DEFINITIONS AND INTERPRETATION
Definitions
In this Lease, unless clearly inconsistent with or otherwise indicated by the context -
1.1.1
"Architect" means an independent architect of at least 15 (fifteen) years standing,
agreed to by the Parties or, failing agreement between the Parties, appointed at the
instance of either the Landlord or the Tenant by the President of the South African
Institute of Architects (or its successors-in-title);
1.1.2
"Beneficial Occupation Date" means the date specified as such in 1.4 of the
Schedule;
1.1.3
"Building" means the building or buildings erected on the Property of which the
Premises form a portion, and which forms part of the Addington Beach Node
Development;
1.1.4
"Business Day" means a day, other than a Saturday, a Sunday or a public holiday in
the RSA, on which banks are open for business and in the event that a day referred
to in terms of this Lease should fall on a day which is not a Business Day, then the
relevant date shall be extended to the next succeeding Business Day;
1.1.5
"Commencement Date" means the commencement date of this Lease specified
in 1.4 of the Schedule;
1.1.6
"Floor Plan" means the floor plan of the Premises, subject to variation as may be
agreed between the Parties, which plan is attached as Appendix B to the Lease;
1.1.7
"General Terms and Conditions" means the general terms and conditions of lease
applicable between the Parties, which General Terms and Conditions are attached as
Appendix A to the Lease;
1.1.8
"Initial Period" means the period of this Lease specified in 1.4 of the Schedule;
1.1.9
"Lease" means the Schedule and the appendices referred to in 4.1 to 4.8 of the
Schedule;
1.1.10
"Addington Beach Node Development” means the recreation hall, public ablutions,
life saving and restaurant development project initiated by the Landlord in Durban, as
reflected on the plan attached as Appendix C;
1.1.11
"Parties" means, collectively, the Landlord and the Tenant and "Party" shall mean
either of them as the context may indicate;
1.1.12
"Permitted uses of Premises" means the purpose for which the Premises are let as
set out in 1.11 of the Schedule;
1.1.13
"Premises" means the premises described in 1.3 of the Schedule and as indicated on
the Floor Plan attached as Appendix B to this Lease;
2
1.1.14
"Prime Rate" means the nominal, annual, rate of interest from time to time publicly
quoted as such by The Standard Bank of South Africa Limited, on overdraft facility to
its most favoured corporate customers, and generally known as Standard Bank’s
prime rate, calculated on a 365 (three hundred and sixty five) day factor irrespective
of whether or not the year is a leap year, as certified by any manager of that bank
whose appointment as such it shall not be necessary to prove, the contents of which
certificate shall be prima facie proof of the contents thereof;
1.1.15
"Property" means the property as described in 1.2 of the Schedule;
1.1.16
"RSA" means the Republic of South Africa;
1.1.17
"SAPOA Prime Grade" means Premises and Premises fit-out of the type and quality
as specified by the South African Property Owners' Association as being of a prime
grade;
1.1.18
"Schedule" means the schedule of information to which these terms and conditions
are attached as Appendix A;
1.1.19
"Signature Date" means the date upon which this Lease is signed by the last of the
Parties;
1.1.20
"Tenant Fit-Out Works" means the Tenant fit-out to be undertaken on the Premises
by the Tenant in accordance with the Tenant's specifications and plans, but subject
to -
1.1.20.1
the prior written consent of the Landlord being obtained, which consent shall
not be unreasonably withheld; and
1.1.20.2
such Tenant fit-out being of no less quality than the SAPOA Prime Grade,
and to the provisions of this Appendix A;
1.1.21
"Termination Date" means the termination date of this Lease specified in 1.4 of the
Schedule; and
1.1.22
"VAT" means value-added tax levied from time to time in terms of the Value-Added
Tax Act, No. 89 of 1991, as amended.
1.2
1.2.1
Interpretation
In this Lease, unless clearly inconsistent with or otherwise indicated by the context -
1.2.1.1
any reference to the singular includes the plural and vice versa;
1.2.1.2
any reference to natural persons includes legal persons and vice versa;
1.2.1.3
any reference to a gender includes the other genders; and
1.2.1.4
references to any enactment shall include references to such enactment as it
may, after the Signature Date, from time to time be amended, supplemented or
re-enacted.
1.2.2
Where appropriate, meanings ascribed to defined words and expressions in 1.1, shall
impose substantive obligations on the Parties.
3
1.2.3
The clause headings in this Lease have been inserted for convenience only and shall
not be taken into account in its interpretation.
1.2.4
In the interpretation of this Lease, the contra proferentum rule of interpretation shall
not apply (this Lease being the product of negotiations between the Parties), nor shall
this Lease be construed in favour of or against any Party by reason of the extent to
which any Party or its professional advisors participated in the preparation of this
Lease.
1.2.5
The use of the word "including" followed by a specific example or examples shall not
be construed or interpreted as limiting the meaning of the general wording preceding
it and the eiusdem generis rule shall not be applied in the interpretation of such
general wording and/or such specific example or examples.
1.2.6
Any provision imposing a restraint, prohibition or restriction on the Tenant shall be so
construed that the Tenant is not only bound to comply therewith but is also obliged, to
the extent reasonably possible, to procure that the same restraint, prohibition or
restriction is observed by everybody occupying or entering the Premises or any part
thereof through, under, by arrangement with or at the invitation of, the Tenant,
including its subsidiaries and the directors, member, officers, employees, agents,
customers and invitees of the Tenant.
1.2.7
This Lease shall be governed by and construed and interpreted in accordance with
the laws of the RSA.
2
PREAMBLE
2.1
The Landlord owns the Property, which the Tenant acknowledges to be subject to certain
servitudes, conditions in the title deed of the Property and other limitations.
2.2
The Tenant wishes to hire the Premises from the Landlord on the terms and conditions
contained in this Lease.
3
LETTING AND HIRING
The Landlord lets to the Tenant which hires the Premises subject to the terms and conditions of
this Lease.
4
COMMENCEMENT AND DURATION
Notwithstanding the Signature Date, this Lease shall commence on the Commencement Date and
endure for the Initial Period until the Termination Date, subject to the provisions of 6.
5
OCCUPATION
5.1
Subject to 5.5 below, occupation of the Premises for commercial purposes shall occur on
the Commencement Date.
5.2
In the event of occupation of the Premises being given to the Tenant after the
Commencement Date, the date on which occupation is given to the Tenant shall be deemed
to be the Commencement Date and the Termination Date shall be extended accordingly. If
the date on which occupation of the Premises is given to the Tenant does not coincide with
the first day of a calendar month, then the rental and other amounts payable by the Tenant
for the month during which occupation is given to the Tenant, shall be abated
proportionately.
5.3
The Landlord shall not be obliged to give the Tenant occupancy of the Premises unless -
4
5.3.1
all the obligations for occupancy provided for in this Lease, including in particular the
receipt by the Landlord of the required rental deposit, guarantees and suretyships as
specified in the Schedule, have been fulfilled; and
5.3.2
this Lease has been duly completed and signed by or on behalf of the Tenant and
delivered to the Landlord.
5.4
The exercise by the Landlord of its rights in terms of 5.3 shall not constitute an extension of
the Commencement Date, nor, in particular, relieve the Tenant from its obligations to
commence paying the deposit, the monthly rent and other amounts payable by the Tenant
under this Lease with effect from the Commencement Date.
5.5
Notwithstanding the Commencement Date referred to in 5.1, the Landlord shall provide the
Tenant with access to the Premises, in order for the Tenant to undertake the Tenant Fit-Out
Works, from the Beneficial Occupation Date. Access to the Premises for the purposes of
the Tenant’s Fit-Out Works shall be given and taken at the Tenant’s own risk.
5.6
Immediately upon the Tenant taking occupation of the Premises for whatever purpose the
Tenant shall permit the Landlord or its agents and/or the servants of the Landlord and their
agents the right of access to the Premises in order to enable the completion of any work in
the Premises which is the responsibility of the Landlord to undertake, subject to compliance
with the Tenant's security arrangements.
6
LEASE RENEWAL
6.1
6.1.1
Option
Subject to 6.3 and 6.5, the Tenant shall have an option (the "Option") to renew this
Lease for the further period referred to in 1.5 of the Schedule from the termination of
the Initial Period (the "Renewal Period") on the same terms and conditions as
contained in this Lease, save that -
6.1.1.1
there shall be no further Option to renew this Lease;
6.1.1.2
the monthly rent and parking rental (collectively, the "Rent") and rate of
escalation payable in respect of the Renewal Period shall be a market Rent
and a market escalation rate prevailing at the time a determination is made in
terms of 6.2; and
6.1.1.3
notwithstanding anything to the contrary herein contained, the monthly Rent
payable in the first year of the Renewal Period shall not be less than
110% (one hundred and ten per cent) of the monthly Rent payable by the
Tenant in the last month of the last year of the Initial Period of this Lease.
6.1.2
The Tenant shall exercise the Option by giving written notice to the Landlord not less
than 6 (six) months and not more than 12 (twelve) months, prior to the termination of
the Initial Period of this Lease, failing which, the Option shall lapse.
5
6.2
6.2.1
Market Rent and Escalation Rate Determination
By not later than 30 (thirty) days after the date on which the Tenant exercised the
Option in terms of 6.1.2, the Tenant shall be entitled to request a market Rent and
market escalation rate determination for the Renewal Period.
6.2.2
The Landlord and the Tenant shall, within 15 (fifteen) days of the Tenant having
requested a rent and escalation rate determination, use their best endeavours to
agree on the prevailing market Rent and the prevailing market escalation rate
applicable at that time.
6.2.3
Should the Landlord and Tenant fail to agree on the prevailing market Rent and/or the
prevailing market escalation rate within the 15 (fifteen) day period contemplated
in 6.2.2, then such determination shall be made by an independent expert appointed
by the Chief Executive Officer for the time being of the South African Property
Owners' Association (or its successor-in-title) (the "Expert"), acting as an expert,
whose decision shall be final and binding on the Parties. The Landlord and the
Tenant shall use their best endeavours to procure that the Expert furnishes his
determination within 15 (fifteen) days of the request for such determination.
6.2.4
The Expert shall, in determining the prevailing market Rent and the prevailing market
escalation rate, have regard to the prevailing market Rents and prevailing market
escalation rates payable in respect of similar premises and taking into account the
terms and period of this Lease.
6.3
Lapsing on Breach
Should the Tenant commit a breach of this Lease at any time during the last year of this
Lease immediately preceding the Termination Date (even if such breach is remedied by the
Tenant), then the Option shall automatically lapse and be of no further force and effect.
6.4
Temporary Lease after Expiration Date where Tenant remains in occupation
In the event of any occupation of the Premises by the Tenant after the Termination Date,
without the Parties having properly renewed the terms of this Lease and without a formal
agreement (signed by both the Tenant and the Landlord) having been concluded for any
reason whatsoever and irrespective of any oral discussions, representations, negotiations
and correspondence that may have been exchanged between the Parties 6.4.1
the Tenant shall be deemed to lease the Premises on a temporary basis, subject to
all the terms and conditions contained in this Lease, provided that either Party will be
6
entitled to terminate such lease by giving 1 (one) month’s written notice of termination
to the other Party; and
6.4.2
the Tenant further agrees that, in such circumstances, the rent and other charges
payable in respect of the first month after the Termination Date, shall not be less than
the rent and other charges payable by the Tenant during the month immediately
preceding the Termination Date, escalated by 10% (ten per cent) in respect of the
rent, assessment rates, service charges and other costs, with the exception of such
service charges that are based on the Tenant’s use as contemplated in 7.3.
6.5
The Tenant shall exercise the Option by giving written notice to the Landlord not less than
6 (six) months and not more than 12 (twelve) months, prior to the termination of the Initial
Period of this Lease, failing which, the Option shall lapse.
7
DEPOSIT, SURETYSHIP, RENTAL AND OTHER CHARGES
7.1
Deposit
7.1.1
The Tenant shall, on the Signature Date pay to the Landlord a deposit in the amount
specified in 1.6 of the Schedule (the "Deposit").
7.1.2
The Landlord shall have the right to apply the whole or part of the Deposit towards -
7.1.2.1
payment of rent, VAT or any other liability or amount whatsoever due by the
Tenant in terms of this Lease;
7.1.2.2
the recovery of expenses incurred by the Landlord in carrying out any of the
Tenant's obligations in terms of this Lease; and/or
7.1.2.3
the reinstatement of the Premises by the Landlord or its agents in the event of
the Tenant failing to procure such reinstatement of the Premises upon vacation
of the Premises to the original state in which the Tenant received the Premises
from the Landlord.
7.1.3
The Landlord shall -
7.1.3.1
subject to what is provided below, retain the Deposit until the Tenant has
vacated the Premises and all the Tenant's obligations arising from this Lease
have been fulfilled; and
7.1.3.2
repay to the Tenant any part of the Deposit not applied in terms of this 7.1.
7.1.4
The Tenant may not set-off against the Deposit any rent, VAT or other amount
payable in terms of this Lease.
7.1.5
In the event of the whole or part of the Deposit being utilised by the Landlord for any
purpose as contemplated in this Lease, the Tenant shall, within a period of 10 (ten)
business days after receipt of notice from the Landlord calling for reinstatement and
specifying the amount required for that purpose, reinstate the Deposit, as the case
may be, to its original amount.
7
7.1.6
Any part of the Deposit not applied in terms of this 7.1 will be refunded to the Tenant
within 90 (ninety) days, of the Termination Date or vacation of the Premises by the
Tenant (whichever shall be the later).
7.1.7
The Parties record that the suretyship attached as Appendix F hereto, shall be
entered into by the Parties simultaneously with the signature of this Lease.
7.2
7.2.1
Rent
The monthly rent payable by the Tenant to the Landlord during the Initial Period shall
be the greater of -
7.2.1.1
the amounts set out in 1.7 of the Schedule; and
7.2.1.2
the turnover rental as determined in accordance with the provisions of
Appendix G,
and shall, in respect of payments made pursuant to 7.2.1.1, be paid by the Tenant to
the Landlord, monthly in advance, on or before the first day of each and every month
and in accordance with 7.4. Payments made pursuant to 7.2.1.2 shall be made in
accordance with the provisions of Appendix G as read together with 7.4.
7.3
Charges in respect of Electricity, Gas and Water Consumption
7.3.1
The Tenant shall, on demand, pay to the Landlord or to the local authority, as the
Landlord may require, the cost together with the attributable VAT thereon, of
all electric current, water and gas consumed or used on the Premises.
7.3.2
Any payment due by the Tenant to the relevant supplier of the services referred to
in 7.3.1 or the Landlord in terms of this 7.3 shall be payable by the Tenant
immediately on demand by the supplier or the Landlord. Should the Tenant fail to pay
such amount within 7 (seven) days of same being presented to the Tenant, then,
without prejudice to its other rights in law, the Landlord shall be entitled to terminate
the particular supply to the Tenant.
7.3.3
The Tenant shall, at the Landlord's discretion, on demand pay either to the relevant
local authority or to the Landlord, any deposit, as required by the local authority and
to the extent that same relates to the Premises, for electricity and water connections
or consumption for the Premises.
7.4
7.4.1
Payment and Interest
All payments to be made by the Tenant in terms of this Lease shall be made on or
before the due date thereof, free of exchange and of any deductions or set-off of any
nature whatsoever, and shall be, unless clearly stated otherwise, paid -
7.4.1.1
during office hours at the Landlord's chosen domicilium (as specified in 1.1.1 of
the Schedule); or
7.4.1.2
by way of direct deposit or electronic funds transfer to a bank account to be
nominated in writing by the Landlord; for which it is a condition that a copy of
the deposit slip or transfer information be forwarded to the Landlord within 7
(seven) days of the date of such deposit or transfer.
7.4.2
The Tenant shall not have the right to defer, adjust or withhold any payment due to
the Landlord in terms of or arising out of this Lease or to obtain deferment of
8
judgment for such amount or any execution of such judgment by reason of any set-off
or counterclaim of whatsoever nature or howsoever arising.
7.4.3
Save to the extent otherwise provided all amounts due by the Tenant to the Landlord
(including damages) in terms of or arising out of this Lease shall, unless paid on due
date, bear interest from the due date to date of payment. Such interest shall be -
7.4.3.1
calculated at the Prime Rate; and
7.4.3.2
capitalised monthly in arrear on the balance due.
8
THE TENANT'S GENERAL OBLIGATIONS
8.1
Manner of using Premises
8.1.1
The Tenant shall be entitled to use the Premises solely for the purposes specified in
1.12 of the Schedule, and for no other purpose whatsoever without the prior written
consent of the Landlord.
8.1.2
The Tenant acknowledges that it shall not have an exclusive right to any particular
type of business being conducted on the Property.
8.1.3
The Tenant shall -
8.1.3.1
ensure that the Premises are both adequately stocked with merchandise (if
applicable) and properly staffed with personnel;
8.1.3.2
procure that the shopfront of the Premises shall at all times be suitably lit up
and comply with such standards of design and presentability as the Landlord
may determine from time to time;
8.1.3.3
ensure that all installations, fittings and fixtures are of good quality and in
keeping with the general lay-out and finish of the other Premises comprising
the remainder of the Building;
8.1.3.4
keep the windows suitably dressed in accordance with the class of business for
which the Premises are leased;
8.1.3.5
be responsible for procuring suitable security arrangements in or on the
Premises in accordance with the nature of the business for which the Premises
are leased; and
8.1.3.6
procure and adhere to appropriate waste disposal and emission filtering
measures in accordance with -
8.1.3.6.1
municipal by-laws;
8.1.3.6.2
directives by the Landlord; and
8.1.3.6.3
the nature of the business conducted on the Premises.
8.1.4
The Tenant shall not -
9
8.1.4.1
permit or consent to any goods being stored or left outside the Premises, in the
passage, lifts or on the landing of the Building adjacent to the Premises;
8.1.4.2
bring any unreasonably heavy article into the Building without the Landlord's
prior consent;
8.1.4.3
permit the contravention of any laws or regulations relating to owners, tenants
or occupiers of business premises or affecting the conduct of business in the
Premises;
8.1.4.4
permit any contravention of the conditions of title whereunder the Property is
held by the Landlord, which the Tenant declares itself to be fully acquainted
with;
8.1.4.5
damage or permit any damage to any part of the Premises or Property;
8.1.4.6
do, or cause or permit to be done on or near the Property anything which may
cause any nuisance, disturbance or danger;
8.1.4.7
hold any auction, fire, closing down, insolvency or liquidation sale in the
Premises or any portion thereof, unless the Premises are specifically let for
such purposes;
8.1.4.8
permit delivery vehicles to unload anywhere other than from Erskine Terrace;
or
8.1.4.9
without the Landlord's prior written consent, use or store or permit the storage
of any corrosive chemicals on the Premises and if the Landlord consents, the
Tenant shall -
8.1.4.9.1
ensure that the use or storage of such chemicals is done strictly in
accordance with all applicable laws, by laws and regulations; and
8.1.4.9.2
take all reasonable precautions to ensure that such chemicals are used
and stored in such a way that there is no spillage and no risk of any
damage being caused.
8.2
Liquor License
8.2.1
Any liquor licence which the Tenant may obtain in respect of the Premises shall be
deemed to attach to the Premises and shall not be transferable therefrom to other
premises without the consent thereto in writing of the Landlord.
8.2.2
The Tenant warrants that in respect of any liquor licence which may be granted it
shall:-
8.2.2.1
Carry on, maintain and keep open the licensed Business with all the rights to
which it is at present entitled under the Liquor Act 1977, as amended,
(hereinafter referred to as “the Act”);
8.2.2.2
At all times conduct the said Business in a lawful and orderly manner;
8.2.2.3
Preserve the character of the licensed Business;
8.2.2.4
Shall not do, omit or permit to be done anything by itself or its servants,
employees or agents which may contravene any statute, law or by-law for the
time being in force relating to the licensed Business or whereby the liquor
10
licence appertaining to the Business may be or become liable to be forfeited or
the renewal thereof with held or refused or whereby such liquor license is
placed in jeopardy;
8.2.2.5
Not do or permit to be done any act in relation to the conduct or management
of the Business which may be reasonably deemed to be an annoyance to the
Landlord, Municipality or the occupiers of property in the neighbourhood;
8.2.2.6
Not commit any breach or the Liquor Laws or any rules or regulations
promulgated in connection therewith or any special order of the Liquor Board
and/or other liquor licensing authority.
8.2.2.7
At its expense, effect any structural alterations to the interior or exterior of the
Premises which may be required by the Liquor Board or any other competent
authority;
8.2.2.8
Forthwith advise the landlord of any obligations or condition imposed in respect
of the Premises or licensed Business by The Liquor Board, the Hotel Board,
the Police or any other competent authority, and any cost involved in complying
with any such requirements shall be borne by the Lessee;
8.2.2.9
Forthwith furnish the landlord with a copy of any report or notice issued by any
of the authorities mentioned above in respect of the Premises or licensed
Business;
8.2.3
8.3
In the event of the Tenant failing to comply with any of the provisions of this clause, or
in the event of the Tenant contravening any Statute Law or Bylaw relating to the sale
or consumption if liquor on or from the licensed Business on the Premises such
failure shall be a breach of this lease. Should the Tenant be in Continuous Breach of
this provision, the landlord shall be entitled to cancel this lease without being required
to give the Tenant further notice as is contemplated.
Litter and Refuse
8.3.1
The Tenant shall be responsible for and shall bear the cost of the daily collection and
disposal of all litter, wheresoever situated, which is generated directly or indirectly by
the carrying on of the Business or which is caused by the actions of persons who are
employees or customers of the Tenant.
8.3.2
The failure of the Tenant to comply with the provisions of this clause shall entitle the
Landlord, without prejudice to its rights in respect of such breach, to make
arrangements for the removal of all such litter and any costs incurred by the Landlord
in this regard shall be borne by the Tenant and shall be payable on demand.
8.3.3
Without derogating from the obligations of the Tenant to comply with all applicable
laws, the Tenant shall not conduct any “ambush marketing” in terms of which it
unlawfully seeks to derive a commercial advantage for itself on the back of an event
taking place on the Beachfront and in respect of which the relevant commercial rights
are held by a third party.
8.3.4
The Tenant shall, in respect of the business which it undertakes at the Premises,
provide a first class service to its customers, the object being that such will enhance
(and in no way undermine) the status of the Central Beachfront. Should the Tenant
fail to deliver and maintain such standard of service as may be reasonably required
by the Landlord, having regard to the above objectives, such shall constitute a
material breach of this Agreement.
11
8.4
Business Hours
8.4.1
Unless otherwise agreed by the Landlord, whose approval shall not be unreasonably
withheld, the Tenant shall keep the Premises open for the conduct of business during
the business hours stated in 1.12 of the Schedule (the "Business Hours"), for the
duration of this Lease or any extension or renewal thereof.
8.4.2
The Tenant agrees that the Landlord, in its reasonable discretion, shall be entitled to
extend the Business Hours upon reasonable written notice to the Tenant, during
specific periods.
8.5
Licences and Permits
The Tenant shall obtain any licenses, permits and authorities required for the lawful conduct
of its business in the Premises.
8.6
Maintenance by the Tenant
The Tenant shall -
8.6.1
advise the Landlord within 14 (fourteen) days after the Commencement Date of any
structural defects in the Premises or of any keys, locks, windows, sewerage pans,
basins and electrical installations and fittings which are in a defective state or are
missing, and the absence of such notice shall constitute prima facie proof of the
absence of any defects or missing articles, and of the good condition of the Premises.
(The Landlord shall make good any defects as specified in the abovementioned “snag
list”.);
8.6.2
at its own expense, keep and maintain the interior and exterior of the Premises (which
shall include all windows, both internal and external) in good order and repair;
8.6.3
keep and maintain the interior of the Premises in a clean, tidy and sanitary condition;
8.6.4
make good or repair any loss, damage or defacement to any plate glass window or
panel or shop front of the Premises, howsoever caused;
8.6.5
not cause or permit the obstruction or blockage of sewerage pipes, water pipes and
drains in use in connection with the Premises, but shall throughout the currency of
this Lease maintain such sewerage pipes, water pipes and drains free from any such
obstruction or blockage;
8.6.6
replace any light bulbs, fluorescent tubes, starters, ballasts, choking coils, tap
washers, cisterns, cistern washers and seals or other consumable items used in the
Premises; and
8.6.7
on termination of this Lease, return the Premises to the Landlord in the same good
condition as it was when the Tenant received it and deliver to the Landlord all keys,
duplicate keys and access cards for the Premises, Property and the Building which
are in the possession of the Tenant, its invitees or guests. If any key, lock or access
card for which the Tenant, its invitees or guests were responsible is lost, damaged or
destroyed, the Landlord may replace any or all the keys, locks or access cards for the
Property or the Building at the Tenant's cost or require the Tenant to do so.
8.7
8.7.1
Electrical Fittings
The Tenant shall not interfere with or alter any electrical installations in the Premises
without the prior consent of the Landlord.
12
8.7.2
The Tenant shall not at any time during the currency of this Lease -
8.7.2.1
make any alterations or additions to the electrical installation of the Building or
of the Premises without the consent of the Landlord;
8.7.2.2
connect any apparatus which might endanger or overload the existing electrical
installation; or
8.7.2.3
install extra electrical or other installations or connections in or about the
Premises, air conditioners or heaters (permanent or portable), or any
computers or similar appliances in the Premises without ensuring that such
installations shall be carried out by a competent electrical contractor approved
of by the Landlord in writing. The cost thereof shall be borne and paid for by
the Tenant.
8.8
8.8.1
Insurance
The Tenant shall -
8.8.1.1
not, save for its normal stock-in-trade, store or permit the storage of any article
upon the Premises or on the Property which may result in the premiums with
regard to any insurance held by the Landlord in respect of the Building, being
increased;
8.8.1.2
at all times comply with the conditions of any fire or other insurance policy held
from time to time by the Landlord in respect of the Premises and/or the
Property; and
8.8.1.3
not permit anything to be done which may result in any insurance policy held by
the Landlord for the time being in respect of the Premises, and/or the Property
being rendered void or voidable.
8.8.2
If any such premium payable in respect of such policy(ies) is increased -
8.8.2.1
by reason of the nature or scope of the business which the Tenant carries out
on/in the Premises in terms of the Lease; or
8.8.2.2
as a result of the Tenant not complying with any of the aforesaid provisions,
then without prejudice to any other rights which the Landlord may have as a result
thereof, the Tenant shall on demand refund to the Landlord the amount of that
additional premium.
8.8.3
The Tenant shall take out and maintain -
8.8.3.1
an insurance policy in respect of the plate glass windows, fixtures, fittings and
the contents of the Premises with (an) insurer/s approved in writing by the
Landlord; and
8.8.3.2
public liability insurance, in the amount set out in the Schedule, with (an)
insurer/s approved in writing by the Landlord.
8.8.4
Whenever so required by the Landlord, the Tenant shall exhibit to the Landlord proof
of such insurance and payment of the premiums that fall due in respect of such
insurance and if the Tenant fails to do so, without prejudice to the Landlord's rights,
the Landlord shall be entitled to pay such premiums and to recover them from the
Tenant on demand.
13
8.9
Non-exclusivity of facilities
8.9.1
The Tenant and its servants and agents shall not be entitled to the exclusive use at
any time of the yard, public toilets, parking areas and other conveniences provided by
the Landlord, but the Tenant shall have the right of reasonable use thereof having
regard to the right of other tenants in this respect.
8.9.2
The Tenant undertakes that its employees and customers shall use the conveniences
which may be allocated by the Landlord.
8.9.3
The Tenant, its employees and servants shall not pollute or encumber any passage,
pavement, corridor, stairway, path, lane, yard or ground which is intended for the
common use of the tenants of the Property.
8.10
8.10.1
Advertising and Signs
The Tenant shall not be entitled to affix, paint, erect, install or display any advertising
or other signs (including neon signs), awning, canopy or any other thing of any kind
(the "Signs") on the windows, doors, exterior or roof of the Premises or Property,
without the Landlord's prior written consent. Should such consent be granted, then
the Tenant shall -
8.10.1.1
keep and maintain any such signs in good, clean and proper working order and
condition and comply with the requirements of any competent authority
pertaining to such signs;
8.10.1.2
indemnify the Landlord against all claims of whatsoever nature made against
the Landlord as a result of the installation, erection or operation of such signs;
and
8.10.1.3
keep within the specification of the architect or the design criteria, if any, of the
Property.
8.10.2
The Tenant shall, upon the expiration or earlier termination of this Lease, remove all
signs affixed, painted, placed, displayed, erected or installed by it with or without the
Landlord's written consent and make good at its own cost any damage caused as a
result of such removal. Should the Tenant fail to so remove all signs or make good
any such damage, the Landlord shall be entitled to recover from the Tenant an
amount equal to the Landlord’s cost thereof and which amount shall be payable by
the Tenant within 7 (seven) days of demand.
8.10.3
The Tenant shall not affix any posters, placards or notices to the external windows,
doors or walls of the Premises.
8.10.4
Should the Tenant affix, paint, erect, install or display any signs referred to in 8.8.1
and/or 8.8.2 on the windows, doors, exterior roof of the Premises or Property, without
the Landlord's prior written consent, then the Tenant shall be obliged to immediately
remove such signs upon receipt of a written notice from the Landlord requiring it to do
so, failing which the Landlord shall be entitled to do so and recover from the Tenant
an amount equal to the Landlord’s cost thereof and which amount shall be payable by
the Tenant within 7 (seven) days of demand. The aforegoing shall apply, mutatis
mutandis, to such signs which were executed with the Landlord's prior written consent
but which do not comply with such approval.
14
8.11
Use of the Landlord's Intellectual Property
The Tenant shall not without the Landlord's prior written consent use any of the Landlord's
intellectual property, including the Landlord's trademarks, service marks, trade names,
domain names, patents, copyrights, inventions, processes and applications therefore,
systems, methods, models, procedures, any and all written material and controls, as well as
all rights to trade secrets, confidential information, know-how and all other rights of a similar
character (regardless of whether such rights are registered and/or capable of registration)
and all applications and rights to apply for protection of any of the same.
8.12
Sub-Letting, Cession and Transfer of Ownership
8.12.1
The Tenant shall not cede, assign, mortgage, pledge, transfer or in any other way
deal with any of its rights under this Lease, nor sub-let the Premises or any part
thereof, nor allow anyone else to occupy the Premises or any part thereof on any
terms and conditions whatsoever or for any reason whatsoever, without the
Landlord's prior written consent.
8.12.2
In respect of sub-letting referred to in 8.12.1 the Tenant shall not sub-let the Premises
or any portion thereof at a greater rent than that payable to the Landlord for the
Premises or for such portion (the rent payable by the Tenant to the Landlord for such
portion to be deemed to be the same proportion of the total rent payable by the
Tenant for the Premises as the square meterage of such portion bears to the total
square meterage of the Premises).
8.12.3
Notwithstanding anything to the contrary, contained or implied herein, should the
Tenant wish to sub-let the whole or any part of the Premises, then -
8.12.3.1
application for the consent of the Landlord shall be made to the Landlord -
8.12.3.1.1
in writing, setting out the name, address and business of the sub-Tenant
as well as setting out all credit and trade references relating to the
proposed sub-Tenant as may be necessary for the Landlord to make an
informed decision; and
8.12.3.1.2
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;
8.12.3.2
the Landlord shall on receipt of such an application, be entitled to give written
notice to the Tenant of the Landlord's consent to the sub-lease, provided that
the Landlord shall not be required to grant its consent to the sub-lease unless
the sub-Tenant agrees in writing to make payments of the rent and all other
amounts due in terms of this Lease direct to the Landlord on behalf of the
Tenant, on the distinct understanding that such undertaking shall in no way
affect the obligations imposed on the Tenant in terms hereof; and
8.12.3.3
the Landlord may charge a fee for the administration of such application for
sub-lease, request a copy of such sub-lease and generally impose such terms
and conditions as it deems fit.
8.12.4
Should the Tenant be a company, the transfer of any of its present issued shares,
unissued share capital or any future increased share capital which results in a change
in the effective control of the company or a disposal of its business, shall be deemed
to be a cession in terms of the provisions of 8.12.1 above and the Tenant shall
require the prior written consent of the Landlord. For the purpose of this 8.12.4,
15
"effective control" shall, without limiting the generality of the meaning of the word,
mean 8.12.4.1
the beneficial ownership of the majority number of the Tenant’s entire issued
ordinary shares (and/or such other classes of shares holding normal voting
rights) directly or indirectly and whether in law or in effect;
8.12.4.2
the right or ability to control, whether directly or indirectly, the votes attaching to
the majority of the Tenant’s issued ordinary shares (and/or such other classes
of shares holding normal voting rights); and/or
8.12.4.3
the right or ability to control the decisions of the board of directors of the
Tenant.
8.12.5
Should the Tenant be a close corporation, then any change in the present members'
interests which results in a change in effective control of the close corporation or a
disposal of its business, shall be deemed to be a cession in terms of the provisions
of 8.12.1 above and the Tenant shall require the prior written consent of the Landlord.
8.12.6
Should the Tenant be a trust, then any change in the present trustees, which results
in a change in effective control of the trust or a disposal of its business, shall be
deemed to be a cession in terms of the provisions of 8.12.1 above and the Tenant
shall require the prior written consent of the Landlord.
8.12.7
Should the Tenant be a partnership, then any change in the present partners or a
disposal of the business being conducted by the partnership, shall be deemed to be a
cession in terms of the provisions of 8.12.1 above and the Tenant shall require the
prior written consent of the Landlord.
8.12.8
Should the Tenant be any other form of legal entity or legal and business enterprise,
then any similar change in effective control of such entity on an ownership and/or
management and decision-making level shall be deemed to be a cession in terms of
the provisions of 8.12.1 above and the Tenant shall require the prior written consent
of the Landlord.
9
PREMISES
9.1
Fitness of the Premises
9.1.1
The Premises are let to the Tenant in the condition they are on the Commencement
Date. The Tenant agrees that the Landlord is not bound by any representations in
respect of the condition of the Premises nor any promise to decorate, alter, repair or
improve the Premises either before or after Signature Date, unless the same are
contained in this Lease.
9.1.2
Save for obtaining an occupation certificate in respect of, or including, the Premises
(as the case may be), the Landlord does not warrant that -
9.1.2.1
the Premises are fit for any purpose; or
9.1.2.2
the Tenant will be granted a licence in respect of the Premises for the conduct
of the business of the Tenant or that any such licence will be renewed.
16
9.1.3
The Landlord shall not be obliged to do anything in order to comply with the
requirements of any licensing, fire, public health, factory or other authority; provided
that the Landlord shall -
9.1.3.1
not unreasonably withhold its consent to the Tenant doing any work, repairs or
alterations as may be necessary to comply with such requirements at the
Tenant's own cost and expense; and
9.1.3.2
be entitled to require that such work, repairs or alterations be effected subject,
mutatis mutandis, to the terms of 10.2.1 and 10.2.2.
9.2
Measurement of the Premises
9.2.1
As soon as reasonably possible after the Signature Date, but prior to the
Commencement Date, the Landlord shall procure that an architect appointed by the
Landlord measures the rentable area of the Premises in accordance with the
standard method of measurement of floor areas for multi-tenanted buildings published
by the South African Property Owners' Association at the time of measurement. The
architect shall issue a certificate setting out the extent of the Premises (the
"Landlord's Certificate").
9.2.2
It is recorded that the basic monthly rental payable in terms of this Lease has been
determined on the assumption that the extent of the Premises is the extent reflected
in Appendices B hereto. To the extent that the actual extent of the Premises, as
measured, is either greater or less than the indicated extent by more than 3% (three
percent), the rental shall be adjusted accordingly (that is, by the same percentage as
the increase or reduction, as the case may be) and the parties shall, as soon as
reasonably practicable after the issue has been determined, make the appropriate
financial adjustments.
9.3
9.3.1
Damage or Destruction
Should the Premises be -
9.3.1.1
destroyed or damaged to such an extent as to render them substantially or
wholly untenantable, then the Landlord shall be entitled to terminate this Lease
with effect from the date of such destruction or damage;
9.3.1.2
damaged, but nevertheless remain substantially tenantable, then this Lease
shall not terminate but the rental payable by the Tenant in respect of the
Premises shall be abated pro rata, having regard to the extent to which the
Tenant is able to enjoy beneficial occupation of the Premises; provided that in
such event the Landlord shall restore the Premises with reasonable expedition;
or
9.3.1.3
damaged or destroyed as a result of any act or omission attributable to the
Tenant, its employees or agents, this Lease shall continue to be of full force
and effect and the Tenant shall repair such damage and/or re-erect or restore
the Premises to the condition it was in or was deemed to be in at the
Commencement Date.
9.3.2
Should any dispute arise between the Landlord and the Tenant in regard to the
provisions of this 9.3, such dispute shall be referred for determination by the Architect
in accordance with the provisions of 17.1.
9.3.3
The Parties agree that pending determination of -
17
9.3.3.1
the calculation of the pro rata reduction referred to in 9.3.1.2; or
9.3.3.2
any dispute contemplated in 9.3.2,
the Tenant shall continue to pay the full monthly rental, Operating Costs and other
charges for the Premises as if they had not been damaged and as soon as the matter
has been resolved, the Landlord shall make the appropriate repayment to the Tenant
(if applicable).
10
FIT-OUT AND ALTERATIONS
10.1
10.1.1
10.2
10.2.1
Installation Specifications / Allowance
The Parties record that the Tenant shall undertake the Tenant installation. The
Tenant shall use its best endeavours to procure that the Tenant installation is
completed prior to the Commencement Date so that the Premises are open for
business on the Commencement Date (it being acknowledged that the ability of the
Tenant to comply with this requirement will be dependent, in part, on the Landlord
providing the Tenant with a beneficial occupation period sufficient to facilitate the
completion of the fit-out prior to the Commencement Date.)
Alterations by the Tenant
The Tenant shall not make any structural or other alteration or addition to the
Premises or partitioning, or undertake any Tenant Fit-Out Works, without the prior
written consent of the Landlord; provided that should the Landlord give such
consent or should the Landlord effect such alterations or additions at the Tenants
request -
10.2.1.1
such alteration or addition shall be effected at the Tenant's cost under the
supervision and control of the Landlord or its nominee;
10.2.1.2
such alteration or addition, or any deviation from the original plans, shall be
approved by the relevant local authority at the Tenant's cost and expense; and
10.2.1.3
the fees of any architect or other professional consultant employed by the
Landlord for that purpose and the cost of all such alterations or additions shall
be borne and paid by the Tenant.
10.2.2
The Landlord shall be entitled to approve contractors, plans and specifications,
without thereby incurring any liability (contractually or otherwise) to the Tenant in
respect of the alterations and additions.
10.2.3
The Tenant indemnifies the Landlord against any liability for any loss, damage or
expense, including consequential damages, which the Tenant, its employees,
invitees, third parties or customers may suffer or incur arising out of the alterations or
additions.
10.2.4
Should the Landlord -
10.2.4.1
so require, the Tenant shall, at the termination of this Lease, remove all
alterations and/or additions and restore the Premises to the condition in which
they were at the commencement of this Lease; or
10.2.4.2
not require such alterations or additions to be removed, all such alterations and
additions shall be the Property of the Landlord, who shall not be obliged to
compensate the Tenant in respect thereof.
18
10.3
Alterations by the Landlord
10.3.1
The Landlord shall be entitled at all reasonable times during the term of this Lease -
10.3.1.1
to effect any repairs, alterations, improvements and/or additions to the Building;
and
10.3.1.2
for any such purpose to -
10.3.1.2.1
erect, in such manner as may be reasonably necessary, scaffolding,
hoardings and/or other building equipment in, at, near or in front of the
Premises, and also such devices as may be required by law or which the
Landlord's architect may certify to be reasonably necessary for the
protection of any person against injury arising out of the building
operations; and
10.3.1.2.2
have access to any portion of the Premises by itself or through its
workmen or agents.
10.3.2
The Tenant shall not -
10.3.2.1
under any circumstances be entitled to cancel this Lease by reason of the
carrying on of such works; and
10.3.2.2
be entitled to a deferment or remission of rental during the carrying on of such
works by the Landlord.
10.4
Re-Building
10.4.1
The Landlord may terminate this Lease or any renewal thereof by giving the Tenant
not less than 6 (six) months' prior written notice to such effect, should the Landlord
wish to reconstruct and/or redevelop and/or renovate and/or make additions to the
Building or the Premises, provided always that such reconstruction and/or
redevelopment and/or renovation and/or additions are of a substantial and material
nature.
10.4.2
The Landlord shall, however, have the right at any time to commence the
reconstruction and/or redevelopment and/or renovation and/or additions of the
Building other than the Premises, and these operations may proceed while the
Tenant is in occupation of the Premises, provided, however, that the Landlord shall
make provision for reasonable access to the Premises whilst such operations are in
progress and use its reasonable endeavours to limit the inconvenience and disruption
of business that will be caused by such operations.
10.4.3
Notwithstanding the above, the Tenant shall not have any -
10.4.3.1
claim for damages of whatsoever nature by reason of the early termination of
this Lease as provided for in 10.4.1; or
10.4.3.2
right to object to any work contemplated in 10.4.2 or claim any remission of
rental during the period in which such work may be in progress.
11
LANDLORD'S RIGHT TO INSPECT AND ADVERTISE THE PREMISES
The Landlord or its duly authorised agents shall be entitled -
11.1
to inspect the Premises at all reasonable times;
19
11.2
to affix to and exhibit on the windows of the Premises a "To Let" notice during the period of
6 (six) months immediately prior to the termination of this Lease;
11.3
together with prospective Tenants and/or purchasers of the Property and/or Building (or any
portion thereof), to view the interior of the Premises at all reasonable times; and
11.4
together with any incoming Tenant, to exhibit on the windows of the Premises at all
reasonable times any notices that may be required in connection with any application for
any business license for the Premises.
12
LANDLORD'S AGENT
The Landlord shall be entitled to appoint agents from time to time for the purposes, amongst
others, of administering all of the “Commercial Leases” in respect of the Central Beachfront and to
terminate the mandate of any agent, in which event the Landlord must notify the Tenant thereof in
writing. Unless otherwise notified by the Landlord, the Tenant must deal exclusively with the
Landlord’s agent in respect of all matters pertaining to or arising out of this Lease.
13
13.1
EXCLUSION OF LIABILITY
Neither the Landlord nor any of its directors, agents, employees or servants shall be liable
for -
13.1.1
personal injury to or the death of any person or the loss of or damage to any property
of whatever nature in the Premises, or the Building or on the Property, howsoever
arising or caused, save by reason of the wilful default or gross negligence of the
Landlord or of any of the said persons or otherwise;
13.1.2
any failure or suspension of, or any interruption in, the supply of water, electricity,
gas, district cooling, air-conditioning, heating, telecommunication service or any other
amenity or service to the Premises or any part of the Premises (including, any
cleaning service), whatever the cause may be;
13.1.3
any breakdown of, or interruption in the operation of, any machinery, plant,
equipment, installation, or system situated in or on, or serving the Premises or any
part of the Premises, including any lift, escalator, geyser, boiler, burglar alarm, or
security installation or system, whatever the cause may be;
13.1.4
any interruption of, or interference with, the enjoyment or beneficial occupation of the
Premises or Property or any part thereof caused by any building operations or other
works to the Building or elsewhere on or about the Property, whether by the Landlord
or by anybody else; or
13.1.5
any loss which the Tenant may suffer as a result of the business activities of any
other occupants of the Property.
13.2
For the purposes of 13.1.1, "personal injury to or death of any person or of loss of or
damage to any Property" shall include loss of profits, consequential damages or any
damage to stock in trade, equipment, machines, raw materials, papers or other articles kept
in the Premises or on the Property (whether the Property of the Tenant or that of anyone
else) by rain, hail, lightning or fire or by reason of riots, strikes, state's enemies or as a result
of theft or burglary, with or without forceful entry, or through any cause whatsoever.
13.3
The Tenant hereby indemnifies the Landlord and its directors, agents, employees and
servants against any claim of whatever nature which may be made against any of them
arising out of any of the aforegoing occurrences.
20
14
BREACH
14.1
Should the Landlord breach any of its obligations under this Agreement and fail to remedy
such breach within a period of 14 (fourteen) days (or such longer period as may be
necessary to facilitate the remedying of the breach by diligent application thereto), the
Tenant shall be entitled, without prejudice to any of its other rights under this Agreement, to
claim specific performance, if such an appropriate remedy in the circumstances, or to cancel
this Agreement by way of written notice to the Landlord and, in either event, to claim such
damages as it may thereby have suffered.
14.2
Should the Tenant –
14.2.1
fail to pay any rent or other amount due by it to the Landlord in terms of this Lease on
the due date therefor; or
14.2.2
commit any breach of the terms and conditions of this Lease which is incapable of
being remedied and which goes to the root of the agreement; or
14.2.3
commit any breach of the terms of this Lease other than a breach referred to in 14.2.1
or 14.2.2 and fails to remedy such breach within 7 (seven) days (or such longer
period as may be reasonably required should such breach not be capable of being
remedied within 7 (seven) days) after written notice requiring that it be remedied; or
14.2.4
so consistently breaches the terms of this Lease (whether by non-payment of rent or
any other amount due to the Landlord on the due date therefore or by noncompliance with its terms) as to justify the Landlord in holding that the Tenant's
conduct is inconsistent with an intention or an ability to carry out these terms; or
14.2.5
breach its obligations with regard to the delivery or maintenance of service of the
required standard as contemplated in clause 8.1.6 above, within 180 days of receipt
of a written notice from the Landlord specifying those service levels of the Tenant
which fall short of the required standard and calling upon it to bring its service levels
up to the required standard; or
14.2.6
being a natural person dies during the currency of the Lease; or
14.2.7
being a natural person, partnership or trust, commit an act of insolvency within the
meaning of section 8 of the Insolvency Act, No. 24 of 1936, as amended, or its
successor in title; or
14.2.8
being a company or close corporation, is or is deemed in accordance with applicable
legislation, to be unable to pay its debts; or
14.2.9
breach any of the provisions of clause 8.10 above; or
14.2.10
be a partnership, and admits any new partners or in any way changes the partners of
the partnership, unless the new partner/s has first bound himself jointly and severally
with the other partners as a tenant unto the Landlord; (and with application, mutatis
mutandis, to an incorporated company with unlimited liability),
then and in any of such events, the Landlord shall have the right but not be obliged, without
prejudice to and in addition to any other rights which it may have at law and in its sole
discretion to the remedies set out in 14.3 below.
21
14.3
Under the circumstances described in 14.2 above, the Landlord shall be entitled to -
14.3.1
cancel this Lease, claim damages and retake possession of the Premises without
prejudice to any of its other rights under this Lease or at law. In so doing, the
Landlord shall be entitled to remove from the Premises any goods situate therein, in
which event, the Tenant shall have no claim whatsoever either for damages or
otherwise against the Landlord. Any goods so removed from the Premises, shall be
stored at the cost and risk of the Tenant; and/or
14.3.2
convert this Lease into one which the Landlord (but not the Tenant who shall continue
to be bound for the full period of the Lease) shall be entitled to terminate by giving
1 (one) month’s written notice to the Tenant, the remaining terms and conditions
being otherwise unaffected, without prejudice to the Landlord’s claim for arrear rent
and/or damages which it may have suffered by reason of the Tenant’s breach or of
the premature cancellation; and/or
14.3.3
claim specific performance and damages.
14.4
In the event of the Landlord cancelling this lease and the Tenant disputing its right to cancel
and remaining in occupation of the Premises, the Tenant shall, pending the determination of
such dispute, continue to pay to the Landlord an amount equivalent to the monthly rental
and or other sums payable hereunder on the date or dates upon which such sum would
have been due but for the cancellation, and the Landlord shall be entitled to accept and
recover such payments. The acceptance thereof shall be without prejudice to and shall not
in any way whatsoever affect the Landlord’s cancellation then in dispute. Should the
dispute be determined in favour of the Landlord, the payments made and received in terms
of this clause shall be deemed to be amounts paid by the Tenant on account of damages
suffered by the Landlord by reason of the cancellation of the lease and/or the unlawful
holding over by the Tenant.
14.5
In the event of the Landlord instructing its attorneys to take legal action or other measures
for the enforcement of any of the Landlord's rights under this Lease, the Tenant shall pay to
the Landlord such legal fees and collection charges on an attorney-and-own-client scale
(alternatively the highest permissible scale of legal fees) together with collection
commission, counsel’s fees, auditor’s fees, forensic auditor’s fees, valuator’s fees,
architect’s fees, quantity surveyor’s fees, other consultants, professional or expert’s fees
and all other reasonable costs incurred by the Landlord in having to take such legal steps as
shall be lawfully charged by such persons to the Landlord, on demand made therefor by the
Landlord.
14.6
Any payments made by the Tenant after legal action has been instituted, shall be
appropriated first towards such legal costs as contemplated in 14.5 above.
15
15.1
RESOLUTION OF DISPUTES
Any dispute which the parties are unable to resolve by negotiation between them (and
following reference of the dispute to the Chief Executive Officer or his designate of each of
the parties), shall, at the instance of either party, be submitted to and decided by arbitration
if it concerns:
15.1.1
any matter arising out of; or
15.1.2
the interpretation of; or
15.1.3
the termination of; or
15.1.4
any matter arising out of the termination of:
22
this Agreement.
15.2
The arbitration referred to in clause 15.1 above shall be held:
15.2.1
at Durban;
15.2.2
in English and in accordance with the provisions of the Arbitration Act then in force in
South Africa;
15.2.3
as soon as is reasonably practicable in the circumstances and with a view to it being
completed expeditiously.
15.3
The arbitrator shall be a person agreed between the parties and, failing agreement, a
person nominated for such purpose by the President (or failing him, the Secretary) for the
time being of the KwaZulu-Natal Law Society (or, if applicable, the successor to the
KwaZulu-Natal Law Society), subject to the following provisions –
15.3.1
if the question in issue is primarily a financial one, the arbitrator shall be an
independent accountant of not less than 10 (TEN) years standing as such;
15.3.2
if the question in issue is primarily a legal matter or is not a matter which falls within
the category contemplated in clause 15.3.1 above, the arbitrator shall be a practising
Senior Counsel at the KwaZulu-Natal Bar.
15.4
The arbitrator shall determine, inter alia, which party shall pay the costs of and incidental to
the arbitration or, if each is to contribute, the ratio of their respective contributions.
15.5
The parties irrevocably agree that the decision of the arbitrator shall, in the absence of
manifest error :
15.5.1
be binding on them;
15.5.2
be carried into effect;
15.5.3
be capable of being made an Order of any Court of competent jurisdiction.
15.6
16
Notwithstanding the above, either party shall be entitled to apply to the High Court for an
interdict or a mandamus where such is appropriate in the circumstances.
NOTICES AND DOMICILIA
16.1
Each Party chooses as its domicilium citandi et executandi its address set out in this 16 for
all purposes arising out of or in connection with this Lease at which address all the
processes and notices arising out of or in connection with this Lease, its breach or
termination may validly be served upon or delivered to the Party.
16.2
For the purpose of the Lease, the Parties' respective addresses shall be –
16.2.1
as regards the Landlord at the domicilium address and facsimile number specified
in 1.1.1 of the Schedule; and
16.2.2
as regards the Tenant at the domicilium address and facsimile number specified
in 1.1.2 of the Schedule,
or at such other address in the RSA, not being a post office box or poste restante, of which
the party concerned may notify the others in writing.
23
16.3
Any notice given in terms of the Lease shall be in writing and shall –
16.3.1
if delivered by hand be deemed to have been duly received by the addressee on the
date of delivery; and
16.3.2
if delivered by recognised courier service be deemed to have been received by the
addressee on the first Business Day following the date of such delivery by the courier
service concerned.
16.4
17
17.1
Notwithstanding anything to the contrary contained in this 16, a written notice or other
communication actually received by a Party shall be adequate written notice or
communication to it notwithstanding that the notice was not sent or delivered to its chosen
address.
MISCELLANEOUS
Determination by Architect
When in terms of the Lease any matters are referred to the Architect for determination –
17.1.1
such Architect shall be appointed mutatis mutandis on the basis provided in 1.1.1;
17.1.2
the reference shall be to the Architect acting as an expert and not as an arbitrator or
quasi arbitrator; with the view that the matter for determination be dealt with as
expeditiously as possible;
17.1.3
each Party shall be entitled to submit written representations in respect of all relevant
factors to the Architect for consideration within 10 (ten) Business Days of notice of a
determination being given;
17.1.4
the Parties shall use their best endeavours to procure that the Architect's
determination of the matter concerned is made within a period of 20 (twenty)
Business Days from the expiry of the date within which the Parties are to submit
written submissions to the Architect in terms of 17.1.3;
17.1.5
the Architect's determination shall be final and binding on the Parties to the dispute
and carried into effect by the Parties. The Architect shall be obliged to give reasons,
whether written or verbal, in respect of any determination; and
17.1.6
the cost of the Architect in making their determination shall be for the account of the
Parties to the dispute in equal shares.
17.2
Signature by Landlord
This Lease shall only take effect and become binding upon the Landlord when signed by the
Landlord, failing which the Tenant may not claim existence of a lease from negotiations
having been conducted or concluded in regard thereto or by reason of this Lease having
been drafted or signed by the Tenant. The execution by the Tenant of this document shall
amount to an offer by the Tenant to enter into this Lease upon the terms and conditions set
forth herein, which offer shall remain open for acceptance until signed by the Landlord. This
offer shall not be affected in any way by subsequent negotiations which may be entered into
by and between the Landlord and/or its agents with the Tenant, whether such negotiations
amount to a counter-offer or not. If the Tenant takes occupation of the Premises before this
Lease has been executed, the Landlord shall be entitled to require the Tenant to vacate the
Premises by giving the Tenant 7 (seven) days written notice to that effect.
24
17.3
Auditors' certificate
A certificate signed by the Landlord's auditors as to the existence of any amount of
indebtedness of the Tenant to the Landlord at any time, as to the fact that such amount is
due and payable, the amount of interest accrued thereon and as to any other fact, matter or
thing relating to the indebtedness of the Tenant to the Landlord, shall be prima facie proof of
the contents and correctness thereof.
17.4
Enforcement by Landlord
17.4.1
Should the Tenant fail to carry out any of its obligations under this Lease then, without
prejudice to any of the Landlord's rights, the Landlord shall be entitled at its discretion
to enforce or to carry out the same on behalf of the Tenant, both during and after the
termination of this Lease, and to recover from the Tenant the cost and expense
thereof.
17.4.2
The Tenant shall have no claim against the Landlord or any defence to any claim by
the Landlord arising out of any act or omission on the part of the Landlord connected
with, effecting or attempting such compliance or, even if the Landlord has undertaken
to effect such compliance, the Landlord failing to do so properly or at all.
17.5
Company or Close Corporation to be formed
17.5.1
If the person who signs this Lease for the Tenant does so acting as a trustee or agent
for a company or close corporation to be formed (the "Trustee") then the provisions
of this 17.5 shall apply.
17.5.2
Such company or close corporation shall be incorporated by not later than 30 (thirty)
days after the Signature Date.
17.5.3
Subject to 17.5.2, if a company is formed for the purpose of ratifying or adopting this
Lease, then the Landlord shall not be bound by such ratification or adoption unless -
17.5.3.1
the company's memorandum on the date of the company's incorporation
contains as one of its objects the ratification or adoption of this Lease;
17.5.3.2
the company in fact ratifies or adopts this Lease within 7 (seven) days after its
incorporation; and
17.5.3.3
the Trustee delivers to the Landlord within 7 (seven) days of the ratification by
the company of this Lease, a copy of the company's memorandum, articles of
association and the company's resolution evidencing the ratification or
adoption, all duly certified as true copies by a director.
17.5.4
If a close corporation is formed for the purpose of ratifying or adopting this Lease,
then the Landlord shall not be bound by such ratification or adoption unless -
17.5.4.1
all the members of the corporation have given their written consent to such
ratification or adoption within 7 (seven) days after the incorporation of such
close corporation; and
17.5.4.2
the Trustee delivers, within 7 (seven) days after the ratification by the
corporation of this Lease, to the Landlord a copy of the close corporation's
founding statement together with a copy of the written consent of all its
members to the ratification or adoption of this Lease, both duly certified as true
copies by an authorised member of the corporation.
25
17.5.5
If neither the company nor the close corporation is incorporated, or once it is
incorporated fails to ratify or adopt this Lease in the manner envisaged in 17.5.3 and
17.5.4, then the Trustee shall be personally bound by and liable for all the obligations
and entitled to all the rights in terms of this Lease.
17.5.6
Until such time as the company or close corporation becomes the Tenant in terms
hereof, the Landlord shall be entitled to regard the Trustee as the Tenant and shall be
entitled to exercise all or any of the Landlord's rights against the Trustee personally.
17.5.7
If the company or close corporation is formed, incorporated or registered, obtains a
certificate to commence business and ratifies and adopts this agreement within the
time periods referred to in 17.5.3 and 17.5.4, the Trustee by his signature hereto
binds himself in favour of the Landlord as surety and co-principal debtor with the
company or the close corporation, as the case may be, under the renunciation of the
benefits of excussion and division for the due and punctual performance by the
company or the close corporation of all its obligations arising out of This Lease or any
cancellation thereof.
17.6
Liabilities of Partners
If the Tenant is a partnership then by their signature of this Lease, the individual partners of
the Tenant bind themselves, both as a partnership and jointly and severally as individuals,
for the Tenant's obligations to the Landlord under and arising out of this Lease. Similarly,
joint Tenants shall be jointly and severally liable for their obligations as Tenants under or
arising from this Lease.
17.7
Cession of Lease by Landlord
The Landlord shall have the right at any time to cede, transfer and assign any or all of its
rights and obligations in terms of this Lease to any company, close corporation or other
person, juristic or otherwise, and the Tenant, upon being notified of such cession shall be
bound to recognise the cessionary as the Landlord under this Lease.
17.8
Warranty of Authority
Each Party warrants to the other Party that it has power, authority and legal right to sign and
perform the Lease and that this Lease has been duly authorised by all necessary actions of
its directors and constitutes valid and binding obligations on it in accordance with the terms
of this Lease.
17.9
Value-Added Tax
The Tenant acknowledges and agrees that -
17.9.1
it shall be liable to pay VAT on the rent and other amounts payable in terms of this
Lease together with payment of such amounts payable to the Landlord; and
17.9.2
if this Lease is entered into prior to the imposition of any increase in the rate of VAT
by the relevant authority, all amounts payable in terms of this Lease shall be subject
to variation in accordance with the provisions of section 67 of the VAT Act, it being
recorded and agreed that the Landlord shall receive the same rent, Operating Costs
and any other amounts payable in terms of this Lease, after payment of VAT,
regardless of the rate at which VAT is payable.
26
17.10
17.10.1
Confidentiality
Confidentiality of Transaction
17.10.1.1
Subject to 17.10.1.2, a Party shall not, without the consent of the other Party,
issue or make any public announcement or statement or release or make
available any information regarding this Lease or its implementation. Once the
other Party has approved any such announcement or statement or release of
information, the approving Party shall automatically be entitled to issue or make
the same announcement or statement or release the information in question in
the same approved format.
17.10.1.2
The provisions of 17.10.1.1 shall not apply to a public announcement or
release of information which any Party is required to make in order to comply
with a statutory obligation or the requirements of a competent governmental
authority or a recognised stock exchange or if such Party or one of its
subsidiaries wishes to disclose any such information in its annual financial
statements, in which event a copy of the announcement or statement shall,
prior to publication or release, be furnished to the other Party for its approval
which approval shall not unreasonably be withheld.
17.10.2
Confidentiality in respect of information
17.10.2.1
All intellectual property, technical, financial, marketing, personnel and similar
information disclosed to either of the Parties either pursuant to this Lease or any
related agreement or in connection with the Party’s ongoing business operations,
shall be deemed to be confidential unless specifically designated as being nonconfidential information.
17.10.2.2
Subject to applicable law, for a period of 1 (one) year from the date of any
disclosure, the receiving Party covenants and agrees itself and on behalf of its
directors, officers, employees and agents to use care and discretion to avoid
disclosure, publication or dissemination of such confidentially information of the
other Party by its employees with similar information of its own which it does not
desire to publish, disclose or disseminate, provided that the above obligations will
not apply to any such information if it -
17.10.2.2.1
is already known to the recipient without obligation of confidence;
17.10.2.2.2
is independently developed by the recipient;
17.10.2.2.3
is or becomes publicly available without breach of this Lease or any related
agreement;
17.10.2.2.4
is rightfully received from a third party;
17.10.2.2.5
is released for disclosure by the disclosing party with its written consent; or
17.10.2.2.6
is required to be disclosed in a response to a valid order of court or other
governmental agency or if disclosure is otherwise required by law.
17.11
Independent Advice
Each of the Parties acknowledges that it has been free to secure independent legal advice
as to the nature and effect of all of the provisions of this Lease and that it has either taken
such independent legal advice or dispensed with the necessity of doing so. Further, each of
the Parties acknowledges that all of the provisions of this Lease and the restrictions herein
27
contained are fair and reasonable in all the circumstances and are part of the overall
intention of the Parties in connection with this Lease.
17.12
Implementation and Good Faith
17.12.1
The Parties undertake to do all such things, perform all such acts and take all steps to
procure the doing of all such things and the performance of all such acts, as may be
necessary or incidental to give or be conducive to the giving of effect to the terms,
conditions and import of this Lease.
17.12.2
The Parties shall at all times during the continuance of this Lease observe the
principles of good faith towards one another in the performance of their obligations in
terms of this Lease. This implies, without limiting the generality of the aforegoing, that
they will -
17.12.2.1
at all times during the term of this Lease act reasonably, honestly and in good
faith;
17.12.2.2
perform their obligations arising from this Lease diligently and with reasonable
care; and
17.12.2.3
make full disclosure to each other of any matter that may affect the execution
of this Lease.
17.13
Further Assurances
The Parties agree to perform any further acts and to execute and deliver any further
documents which may be necessary or appropriate to carry out the purposes and the
implementation of this Lease.
17.14
Whole Agreement
This Lease constitutes the whole agreement between the Parties as to the subject matter
hereof and no agreement, representations or warranties between the Parties other than
those set out herein are binding on the Parties.
17.15
Variation
No addition to or variation, consensual cancellation or novation of this Lease (including a
variation of cancellation of this clause) and no waiver of any right arising from this Lease or
its breach or termination shall be of any force or effect unless reduced to writing and signed
by all the Parties or their duly authorised representatives.
17.16
Relaxation
No latitude, extension of time or other indulgence which may be given or allowed by the
Landlord to the Tenant in respect of the performance of any obligation hereunder or
enforcement of any right arising from this Lease and no single or partial exercise of any right
by the Landlord shall under any circumstances be construed to be an implied consent by the
Landlord or operate as a waiver or a novation of, or otherwise affect any of the Landlord's
rights in terms of or arising from this Lease or estop the Landlord from enforcing, at any time
and without notice, strict and punctual compliance with each and every provision or term
hereof.
28
17.17
Costs
17.17.1
Save as otherwise expressly stated, each Party is responsible for its own costs
incurred in the negotiation, drafting and settlement of this Lease.
17.17.2
All costs, including attorney and own client costs, incurred by one Party arising out of
the breach of any provisions of this Lease by the other Party, shall be borne by the
Party in breach.
29
APPENDIX B
FLOOR PLAN
APPENDIX C
LOCALITY PLAN
APPENDIX D
LANDLORD'S RESOLUTION
APPENDIX D
LANDLORD'S RESOLUTION
EXTRACT FROM THE MINUTES OF A MEETING OF THE COUNCIL OF THE ETHEKWINI
MUNICIPALITY HELD AT DURBAN ON THE 31st DAY OF AUGUST 2009
IT WAS RESOLVED:
That in terms of section 34(4) of the Asset Transfer Regulations, the Council delegates to the City
manager the power to approve in principle the granting of the right to use, control or manage a capital
asset.
_______________________________
Certified a True Copy
Date
APPENDIX E
TENANT'S RESOLUTION
APPENDIX E
TENANT’S RESOLUTION
EXTRACT FROM THE MINUTES OF A MEETING OF ____________(the "Company/Corporation")
PASSED AT DURBAN ON ......................
RESOLVED THAT -
1
the Company enters into a lease agreement with eThekwini Municipality (the "Landlord") in
terms of which the Landlord lets and the Company hires ........................ on the terms and
conditions contained in the lease tabled at the meeting.
2
............................................. (ID Number ....................) be and is hereby authorised to do all
such things and sign all such documents to give effect to the transaction referred to in 1.
___________________________
Certified a true copy
Date
Shareholders
1
APPENDIX F
SURETYSHIP
1
APPENDIX F
SURETYSHIP
1
We, the undersigned, [....................] (Identity Number/Registration Number [.............]), and
[..............] (Identity Number/ Registration Number [..............]) of [................], do each hereby bind
ourselves, jointly and severally to the eThekwini Municipality (the "Creditor"), their
successors-in-title and assigns, as sureties for and co-principal debtors in solidum with
[.....................] (Identity Number/Registration Number [...................]) (the "Principal Debtor") for
the due and punctual payment and performance by the Principal Debtor of all debts and
obligations of whatever nature and howsoever arising which the Principal Debtor may now or in
the future owe to the Creditor arising directly or indirectly out of and/or pursuant to -
1.1
the lease agreement (the "Lease Agreement") concluded between the Creditor and the
Principal Debtor, during [............], to which this suretyship is Appendix F or any temporary
leases contemplated in clause 6.4 of Appendix A of the Lease Agreement or any renewal or
cancellation of the Lease Agreement; and/or
1.2
any breach by the Principal Debtor of any of the provisions of the Lease Agreement; and/or
1.3
any breach of any warranty given by the Principal Debtor to the Creditor in terms of the Lease
Agreement,
(all of which debts and obligations are referred to as "the Obligations").
2
As part of our liability in terms hereof, we bind ourselves as aforesaid to pay the amount of all
costs, charges and expenses of whatever nature including, but without derogating from the
generality of the aforegoing, tracing costs, collection commission and legal costs as between
attorney and own client incurred by the Creditor in securing or endeavouring to secure fulfilment of
the Obligations as well as our Obligations hereunder.
3
The rights of the Creditor under this suretyship shall in no way be affected or diminished if the
Creditor at any time obtains additional suretyships, guarantees, securities or indemnities in
connection with the Obligations of the Principal Debtor.
4
Notwithstanding that this suretyship may -
4.1
for any reason whatever be held to be or become not binding in whole or in part upon any one
or more of us; and
4.2
not be signed by any one or more of us,
it shall be and remain of full force and effect and binding upon the others of us.
5
This suretyship shall remain in full force and effect notwithstanding -
5.1
any fluctuation in or temporary extinction for any period whatever of the Obligations; or
5.2
the death or sequestration of any one or more of us or any one or more of us suffering legal
disability;
5.3
any alteration to or amendment of the Lease Agreement,
until such time as the Obligations have been discharged in full.
2
6
We shall be bound by all admissions and acknowledgements of indebtedness made or given at
any time by the Principal Debtor to the Creditor now or in the future in regard to any of the
Obligations.
7
No alteration, variation or novation of any present or future agreement between the Principal
Debtor and the Creditor shall in any way release us from our liability hereunder.
8
The Creditor shall be entitled, whether before or after the due dates for payment or performance of
the Obligations, without reference or notification to us, without affecting its rights hereunder and
without releasing any surety hereunder, to -
8.1
release any other sureties and securities;
8.2
grant the Principal Debtor extensions of time for payment; and/or
8.3
compound or to make any other arrangements with the Principal Debtor for the discharge of the
Principal Debtor's indebtedness.
9
The Creditor shall further be entitled, without reference or notification to us, to release any one or
more of us from our Obligations hereunder in whole or in part, without affecting the rights of the
Creditor against the others of us and without reducing the liability of the others of us in terms
hereof.
10
Should the Principal Debtor be wound-up, placed in liquidation or under judicial management, or
submit an offer of compromise or of composition, or a scheme of arrangement in terms of any
company or insolvency law, or in terms of the common law the Creditor shall be entitled to accept
any -
10.1
dividend in such event on account and in reduction of the Principal Debtor's indebtedness;
and/or
10.2
other securities, guarantees or suretyships arising out of any such event.
11
No provision of any clause, nor any action taken by the Creditor, shall affect or diminish our liability
in terms hereof, save to the extent of actual payment to the Creditor applied in reduction of the
indebtedness of the Principal Debtor.
12
We hereby warrant to the Creditor that we have a material interest in binding ourselves in terms of
this deed which is entered into for our benefit.
13
Should the Principal Debtor fail to discharge any of the Obligations on due date, the Creditor shall
be entitled notwithstanding any contrary arrangement with the Principal Debtor, to demand from us
immediate performance of all the Obligations then due and owing by the Principal Debtor to the
Creditor.
14
We hereby renounce the benefits of the legal exceptions "non causa debiti", "errore calculi",
"excussion", "division", "de duobus vel pluribus reis debendi", "no value received", "cession of
action" and "revision of accounts", with the meaning and effect of all of which we declare ourselves
to be fully acquainted.
15
We hereby agree and consent that the Creditor shall, at its option, be entitled to institute any legal
proceedings which may arise out of or in connection with this deed of suretyship, at the election of
the Creditor, in -
15.1
any magistrate’s court having jurisdiction, notwithstanding the fact that the claim or value of the
matter in dispute might exceed the jurisdiction of such magistrate's court; or
3
15.2
the KwaZulu-Natal High Court, Durban to which jurisdiction we hereby consent.
16
We hereby choose domicilium citandi et executandi at the address set out in 1 above at which
address all notices and communications may be addressed to us and all notices addressed to us
at the said address and dispatched by prepaid registered post shall be deemed to have reached
us 7 (seven) days after the date of posting.
17
A certificate under the hand of the auditors of the Creditor as to the existence and amount of the
indebtedness of the Principal Debtor and of ourselves to the Creditor at any time, as to the fact
that such amount is due and payable, the amount of interest accrued due thereon and the rate of
interest applicable thereto and as to any other fact, matter or thing relating to the indebtedness of
the Principal Debtor and of ourselves to the Creditor shall be prima facie proof of the contents and
correctness thereof and the amount of our indebtedness hereunder for the purpose of provisional
sentence or summary judgment or any other proceedings against us in any competent court, and
shall be valid as a liquid document for those purposes. It shall not be necessary to prove the
appointment of the person signing any such certificate.
18
Each provision in this suretyship is severable the one from the other and if any provision is found
by any competent court to be defective or unenforceable for any reason whatever, the remaining
provisions shall be of full force and effect and continue to be of full force and effect.
19
In this suretyship, unless the context clearly indicates a contrary intention, an expression which
denotes the singular includes the plural and vice versa.
20
In the event that provision is made for the signature hereof by more than one surety, the liability of
the signatories in terms hereof shall in no way be effected, diminished or extinguished if any surety
or sureties fail to sign this suretyship.
21
We acknowledge and confirm that this deed of suretyship was duly completed in all respects
before it was executed by us.
Signed at _____________________________ on ___________________________ .
Witnesses
________________________
________________________
(Surety)
Signed at _____________________________ on ___________________________ .
Witnesses
________________________
________________________
(Surety)
4
APPENDIX G
TURNOVER RENTAL SCHEDULE
1
APPENDIX G
TURNOVER RENTAL SCHEDULE
1
DEFINITIONS
For the purpose of this Appendix the definitions contained in the Lease to which this document is
attached as Appendix G, shall have the same meanings herein and the following words and
expressions shall have the meanings set opposite them below -
1.1
"Group" - the companies which from time to time being are the Tenant's holding and subsidiary
companies and companies which are subsidiary companies of the Tenant's holding companies;
1.2
"Turnover" - the selling price of goods sold by the Tenant and the Group in the Premises,
whether sold for cash, credit, on hire purchase or on other terms, minus –
1.2.1
discounts and credits: any discounts and credits allowed in respect of goods traded in and
goods repossessed for any reason;
1.2.2
bad debts: any amounts reasonably written off during any Year as bad debts; provided that
any bad debts which have been written off and are subsequently recovered shall be added
to the Turnover in the Year during which they are recovered; and
1.2.3
interest and finance: interest, finance and any other charges and any tax or imposition
levied in connection with the sale of goods from the Premises; and
1.2.4
the VAT portion of such Turnover.
1.3
2
"Year" – each of the 12 (twelve) month periods corresponding with a year of this Lease, the first
such Year being the period commencing on the Commencement Date with the second Year
commencing on the first anniversary of the Commencement Date, and so on.
ANNUAL TURNOVER RENTAL
The annual turnover rental payable by the Tenant to the Landlord for the Initial Period shall be the
amount by which the percentage of the Turnover for the relevant Year, as specified in 1.8 of the
Schedule, exceeds the aggregate basic rental referred to in 1.7 of the Schedule for the same Year.
3
STATEMENT OF TURNOVER
Within 3 (three) months after the end of each succeeding Year, the Tenant shall furnish a
statement to the Landlord setting out the Turnover during that Year and the aggregate basic rental
referred to in 1.7 of the Schedule for the same Year. The following provisions shall apply to each
such statement -
3.1
auditors’ certificate - it shall be certified as correct by the Tenant's auditors for the time being;
3.2
reference to auditors - if the Landlord disputes the information contained in any such statement,
then it shall be referred for determination to the respective auditors for the time being of the
Landlord and the Tenant and if such auditors agree, their decision shall be final and binding
upon the Parties save for patent errors or errors of omission. Each of the auditors shall make
its working papers available for inspection and consideration by the other auditor and the
Landlord or the Tenant (as the case may be);
2
3.3
reference to umpire - if such auditors do not agree, they shall appoint a third practising auditor
who shall be agreed upon between them and, failing agreement, shall be appointed by the
chairman, and failing him the secretary, for the time being of the South African Institute of
Chartered Accountants (Eastern Region), whose decision shall be final and binding upon the
Parties, subject to patent errors or errors of omission. The third auditor shall make its working
papers available for inspection and consideration by the Landlord or the Tenant and their
respective auditors;
3.4
correction of patent errors - if either the Landlord or the Tenant allege that the inspection of the
working papers in terms of 3.2 or 3.3 has disclosed a patent error or an error of omission, and
the Parties are unable to agree within a reasonable time upon the steps to be taken to rectify
such alleged error, then a dispute shall be deemed to have arisen in regard to such alleged
error, which shall be referred to an independent auditor to be appointed by the Parties and
failing agreement, to be appointed by the chairman, and failing him the secretary, for the time
being of the South African Institute of Chartered Accountants, mutatis mutandis as set out in
3.3; and
3.5
costs - each of the parties shall bear the charges of the auditors appointed by it and they shall
share equally the charges of any auditor referred to in 3.3 and 3.4.
4
NOTIFICATION OF MONTHLY TURNOVER AND TRANSACTIONS
Notwithstanding anything to the contrary contained or implied herein, the Tenant shall be obliged
to notify the Landlord in a manner as requested by the Landlord, of its monthly Turnover and the
number of transactions completed by the Tenant on the Premises, by no later than the 7th
(seventh) day of each calendar month in respect of its Turnover in the previous calendar month.
5
PAYMENT OF TURNOVER RENTAL
The Tenant shall, within a period of 7 (seven) days after having furnished the statement referred to
in 3 to the Landlord, pay, if applicable, to the Landlord the annual Turnover rental referred to in 2.
6
ADJUSTMENT OF ADDITIONAL MONIES
Any adjustment to be made to the amount paid by the Tenant in terms of 3 as a result of any
dispute referred to in 3.2, 3.3 and/or 3.4 shall be paid in cash 7 (seven) days after the dispute has
been resolved.
7
BROKEN PERIOD ON TERMINATION
If this Lease terminates for any reason before the end of any Year, then the aggregate basic rental
referred to in 1.7 of the Schedule for the same Year shall be calculated for the period between the
end of the previous Year and the date of termination. The Turnover rental for that period shall be
the amount by which the percentage of the Turnover for the relevant Year as specified in 1.8 of the
Schedule (for the period concerned), exceeds the aggregate basic rental referred to in 1.7 of the
Schedule for the same Year (for the period concerned). Within 3 (three) months of the date of
termination of the Lease, the statement referred to in 3 shall be delivered to the Landlord and the
provisions of 3.2, 3.3 and 3.4 shall apply, mutatis mutandis.
8
INSPECTION
In order to satisfy itself as to the Turnover, the Landlord’s auditors shall be entitled, at the
Landlord’s cost, at all reasonable times to inspect the Tenant’s and the Group’s books and records
relating to the business conducted by them in the Premises.
3
9
CONFIDENTIAL INFORMATION
No information which may come to the knowledge of the Landlord or its auditors for the time being
as a result of the provisions of this Appendix shall be divulged by them to any person without the
prior written consent of the Tenant. The Landlord undertakes to procure and deliver to the Tenant
a written undertaking from its auditors for the time being in favour of the Tenant to be bound by the
provisions of this 0. Such undertaking shall be delivered by the Landlord's auditors to the Tenant
before delivery by the Tenant of its first statement of turnover in terms of 3.
10
10.1
MINIMUM TURNOVER
The Tenant warrants that the annual turnover of the Tenant shall not be less than -
10.1.1
the amount specified in 1.9.1 of the Schedule, during the first Year; and
10.1.2
an amount equal to the amount specified in 1.9.1 of the Schedule, escalated at the rate
specified in 1.9.2 of the Schedule per annum compounded, in respect of each subsequent
Year.
10.2
The Landlord reserves the right to cancel this Lease by written notice to that effect to the
Tenant in the event of the actual annual Turnover being less than the warranted minimum
turnover set forth in 10.1.
4