Fillable Printable Memorandum of Agreement of Lease

Memorandum of Agreement of Lease

MEMORANDUM OF AGREEMENT

OF LEASE

LESSOR

and

LESSEE

trading as

138 Muckleneuk Street, Nieuw Muckleneuk, Pretoria, 0181

P O Box 2500, Brooklyn Square, 0075

Telephone: 012 483 2333 Fax No: 012 4832340 Email: pretor@pretor.co.za

AGREEMENT OF LEASE

TABLE OF CONTENTS

HEADING

CLAUSE NO.

PAGE NO.

ADVERTISING AND SIGNAGE

AGREEMENT OF LEASE

BREACH

CONTRAVENTION OF LAWS

COSTS OF AGREEMENT

DEPOSIT

DESTRUCTION

DOMICILIUM

DURATION AND COMPLETION

OPERATING COSTS AND MUNICIPAL

CHARGES

GENERAL

OTHER CHARGES

INSURANCE

INTERPRETATION

JURISDICTION

LESSOR'S ACCESS

LIMITATION OF LIABILITY OF LESSOR

MAINTENANCE & USE OF LEASED

PREMISES

PARKING

N/A

REDEVELOPMENT

RELOCATION

RENTAL

RETAIL BUSINESS OF LESSEE

SUBLETTING, TRANSFER OF OWNERSHIP

SURETYSHIP

TRUSTEE FOR A COMPANY OR CLOSE

CORPORATION TO BE FORMED

N/A

AGREEMENT OF LEASE

MADE AND ENTERED INTO BY AND BETWEEN

LANDLORD

(REG NO. )

herein represented by

being duly authorised thereto in his capacity as

(hereinafter referred to as "the Lessor")

and

TENANT

(REG NO. )

herein represented by

(ID NO. )

being duly authorised thereto in his capacity as

(hereinafter referred to as "the Lessee")

IT IS AGREED AS FOLLOWS:

1. INTERPRETATION

1.1 The headings to the clauses of this agreement are for reference purposes only. Words importing

any one gender shall include the other. Words importing the singular shall include the plural and

vice versa.

1.2 The following terms shall bear the following meanings:

1.2.1 "the leased premises" means the premises specified in Schedule 1;

1.2.2 "the commencement date" means either :

1.2.2.1 the date specified as such in Schedule 1 or, in the event that no such date is

specified in Schedule 1 -

1.2.2.2 the date specified by the Lessor as the commencement date by written

notice given to the Lessee, not less than 30 (thirty) days prior to the date so

specified by the Lessor as the commencement date;

whichever is the later, but subject in either event to the overriding provisions of clause

3.2. below.

1.2.3 "due date" means the first (1st) day of each and every month, if not a Saturday, Sunday

or Public Holiday.

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1.2.4 "the common areas" shall include the foyers, malls, arcades, passages, parking areas,

entrances, exits, ramps, landscape areas, interior and exterior stairways, toilets and all

other amenities provided by the Lessor for general use in common by the tenants in the

building and their servants, employees, customers and invitees in or about the building or

the property;

1.2.5 "pro rata share" means the ratio which the lettable floor area of the leased premises

bears to the total lettable floor area of the building. In order to derive the aforesaid ratio,

the lettable floor areas of the leased premises and of the building respectively shall be

determined by using the SAPOA Method of Measuring Floor Areas in Commercial

Buildings.

2. AGREEMENT OF LEASE

The Lessor hereby lets to the Lessee who hereby hires the leased premises from the Lessor, on the

terms set out in this agreement and in the schedule or schedules annexed hereto, which are

deemed to be incorporated herein.

3. DURATION AND COMPLETION

3.1 This lease shall commence on the commencement date and shall continue until the

termination date.

3.2 Should the leased premises not be ready for occupation by the Lessee on the

commencement date for any reason whatsoever then the Lessee shall have no claim for

cancellation of this lease or damages or other right of action against the Lessor but the

Lessee shall take occupation of the leased premises on the date upon which the leased

premises are ready for occupation. In that event, the Lessee shall accept occupation on

the later date on which the leased premises become available which shall thereupon be

deemed to be the commencement date. The duration of this lease shall not be extended

accordingly.

3.3 Any dispute between the parties as to whether the premises are available for beneficial

occupation shall be referred for determination to an architect in private practise

nominated by the Lessor in writing and the decision of such architect, who shall act as an

expert and not as an arbitrator, shall be final and binding on the parties.

3.4 If the building is in the course of completion or alteration or addition or repair or

refurbishing on the commencement date the Lessee acknowledges that it must

necessarily suffer a certain amount of inconvenience and loss of beneficial occupation

from the building operations, noise and dust resulting therefrom, or from any cause

associated therewith, and that it will have no claim against the Lessor or its officers or

servants for compensation or damages or for a remission of rent by reason of any such

inconvenience or loss of beneficial occupation during the period of completion.

3.5 Should the Lessee, subsequent to the expiry date, remain in occupation of the premises

and no written agreement to the contrary be concluded with the Lessor, the terms

and conditions of this lease shall remain in full force and effect, save that either

party shall be entitled to give the other party three (3) calendar month’s written notice

to terminate the lease.

3.6 All amounts payable by the Lessee subsequent to the expiry date shall escalate or be

reviewed as if the lease had been extended or renewed and all rentals and operating

costs referred to in Schedule 1 attached to this Lease shall escalate at the rate as

determined from Schedule 1.

4. RENTAL

4.1 The monthly rental payable by the Lessee to the Lessor shall be the amount specified as

such in Schedule 1.

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4.2 All rentals shall be payable monthly in advance on or before the first (1st) day of each

and every month and shall be payable, together with any other monies payable to the

Lessor in terms of this lease without any deduction and free of exchange in Pretoria at

the offices of PRETOR ESTATES (PTY) LIMITED, 138 Muckleneuk Street, Nieuw

Muckleneuk (PO Box 2500) Brooklyn Square, or at such other place as the Lessor

may from time to time in writing appoint.

4.3 No relaxation or indulgence, which the Lessor may show to the Lessee shall in any way

prejudice the Lessor's rights. In particular, no acceptance by the Lessor of rent after due

date (whether on one or more occasions) nor any other act or omission by the Lessor

shall preclude it from exercising any rights enjoyed by it hereunder.

4.4 The Lessor shall be entitled to appropriate any amounts received from the Lessee

towards the payment of any cause, debt or amount owing by the Lessee.

4.5 Without prejudice to any of the Lessor's rights, the Lessee shall pay the Lessor interest

on all overdue payments calculated at the ruling prime bank rate, plus 2%, of First

National Bank Limited, calculated on the outstanding balance as at the first of the month,

for the duration of this particular month.

5. DEPOSIT

5.1 The Lessee, shall on the signing hereof, pay the deposit specified in Schedule 1 to the

Lessor. The Lessor shall have the right to apply the whole or portion thereof towards

payment of the rent, water and electricity charges, key replacements, renovations and

any other liability for which the Lessee is responsible in terms of this agreement. If any

portion of the deposit is so applied, the Lessee shall forthwith reinstate the deposit to its

original amount.

The deposit, or the balance thereof, as the case may be shall be refunded by the Lessor

to the Lessee :

5.1.1 after the Lessee shall have vacated the leased premises; and

5.1.2 after all the Lessee's obligations to the Lessor in terms hereof shall have

been fully discharged; and

5.1.3 free of interest.

6. OPERATING COSTS AND MUNICIPAL CHARGES

6.1 The Lessee shall pay the cost of the supply of electricity, water and sanitation to the

premises in accordance with the readings obtained on meters installed or to be installed

for this purpose.

6.2 Should such meters not be installed or fail or be removed for any reason whatsoever and

not record the amount of electricity used by the Lessee, the Lessee shall pay to the

Lessor each month an amount equal to the average amount paid by the Lessee for the

preceding six months or for the preceding period of this lease in the event of it being less

than six months, until such time as the metering system is again in operation.

6.3 Should such meters only be installed or become operable after the Lessee has taken

occupation of the leased premises, the Lessee shall pay to the Lessor an amount

calculated as above provided for, using the subsequent three month's meter readings as

a basis for the calculation instead of the previous six months.

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6.4 Should it be impractical to install separate meters for the premises, the Lessee shall pay

the cost of the supply of electricity, water and sanitation to the premises according to

estimates to be made from time to time by the Lessor, having due regard to the total cost

of electricity, water and sanitation consumed in the building of which the premises forms

a part to be levied pro rata to the ratio floor area occupied:total lettable area of the

building or premises.

6.5 The Lessor may employ the services of an independent authority/contractor specialising

in the recovery of electricity, water and sanitation consumption. Such authority/contractor

shall be entitled in its discretion to recover and hold from the Lessee a deposit.

6.6 The Lessee shall pay for the cost of refuse removal where such costs are borne by the

Lessor, which cost is to be levied pro rata to the ratio floor area occupied:total lettable

area of the building or premises.

7. OTHER CHARGES

7.1 The Lessor shall pay any assessment rates levied on the premises by any lawful

authority, including but not limited to any local authority.

7.2 Furthermore, in the event of the assessment rates payable in respect of the premises

being increased during the currency of this Lease or any extension thereof, the Lessee

will be liable for a share of the increase to be levied pro rata to the ratio of floor area

occupied:total lettable area of the building or premises, from the time of such increase.

8. MAINTENANCE AND USE OF THE LEASED PREMISES

8.1 The Lessee shall not use the leased premises for any purpose other than that set out in

Schedule 1, without the Lessor's prior written consent.

The Lessee shall specifically not hold or permit the holding of sales by public auction in

or upon the leased premises without the Lessor's prior written consent.

8.2 The Lessor does not warrant that the leased premises are fit for the purposes for which

they are let or that the Lessee will be granted a licence in respect of the leased premises

for the conduct of the business of the Lessee or that any licence will be renewed. There

shall be no liability on the Lessor to do any work or make any alterations or repairs to the

leased premises to comply with the requirements of any licensing authority.

8.3 The Lessee shall, at its own cost, keep the leased premises in a clean and sanitary

condition and in addition thereto, at its own cost, keep and maintain the interior of the

leased premises in good order and condition. Without derogating from the generality of

the aforegoing, the Lessee shall:

8.3.1 replace or repair all fixtures and fittings, electrical wiring and appliances,

doors, door handles, locks, keys, entrances and windows in or serving the

leased premises and on the expiration or earlier termination of this

agreement shall deliver the leased premises to the Lessor in the same good

order and condition as existed at the commencement date;

8.3.2 prevent any blockage of sewerage or water pipes or drains in the leased

premises and shall remove at its cost any obstruction or blockage in any

sewer, waterpipe or drain serving the leased premises and where necessary

repair the sewer, waterpipe or drain concerned;

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8.3.3 replace where necessary all fluorescent bulbs, starters, ballasts and

incandescent bulbs used in the leased premises and shall be responsible at

its own cost to maintain all light fittings in the leased premises in proper order

and clean condition;

8.3.4 except for normal fixturing purposes, not drive or permit to be driven into the

walls or ceiling of the leased premises or the building any nails, screws or

other instruments, nor do or permit anything to be done that may damage the

walls or ceilings or any other portion of the leased premises or the building;

8.3.5 maintain all glass, both internal and external, window panels and shopfronts

contained in the leased premises, and shall be obliged at its expense to

replace any such glass, window panels or shopfronts as may be damaged.

Replacement of damaged glass shall comply with the safety regulations as

specified by the Department of Trade and Industries or any competent

authority;

8.3.6 maintain in good order and condition any carpeting which may be supplied by

the Lessor in the leased premises, and shall, on the expiration or earlier

termination of this agreement, deliver such carpeting to the Lessor in the

same good order and condition as existed at the commencement date, fair

wear and tear alone excepted. It is specifically recorded that, for the purpose

of this clause, "fair wear and tear" shall not apply to usage of the carpets

other than for pedestrian traffic and shall not release the Lessee of its

obligation to clean the carpets at regular intervals.

8.3.7 at the expiration or earlier termination of this agreement, and in the event

only that the Lessee shall have failed to restore the leased premises to the

Lessor in the same good order and condition as they were at the

commencement of this lease, pay to the Lessor, on demand, the reasonable

cost of restoring the leased premises to the same order and condition in

which they were at the commencement date. Without derogating from the

generality of the aforegoing, the cost of restoring the leased premises shall

include the cost of redecoration and the cost of steam cleaning any carpeting

in the leased premises.

8.4 In the event of the Lessee's failing or refusing to maintain or repair the leased premises

or part thereof as provided for in terms of this clause and remaining in default for a

period of 7 (seven) days after despatch by the Lessor of a written notice calling on the

Lessee to rectify such default, then the Lessor shall be entitled to effect the necessary

maintenance or repairs and to claim the costs so incurred from the Lessee, who shall be

obliged to pay such claim forthwith.

8.5 The Lessee shall notify the Lessor in writing within 7 (seven) days after the

commencement date of any defects in the leased premises. If it has not notified the

Lessor as aforesaid, it shall be deemed to have acknowledged that the leased premises

were received in good order and condition and the Lessee shall have no claim against

the Lessor for any defect which may subsequently be found therein.

8.6 The Lessee shall not:

8.6.1 change or interfere with the electrical or other lighting and heating

installations in the leased premises or any air-conditioning equipment or

electrical appliances therein, without the prior written consent of the Lessor

and shall ensure that the electricity supply is not overloaded at any time

during the currency of this agreement;

8.6.2 cause or permit any nuisance to emanate from the leased premises, or to

cause or permit any disturbance to the other tenants in the buildings or

occupiers of neighbouring premises;

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8.6.3 remove, alienate or sell any goods, furniture or stock-in-trade in the leased

premises, except in the ordinary course of its business;

8.6.4 bring into or place any safe or other heavy machinery or equipment in the

leased premises or the building without the Lessor's prior written consent

which the Lessor may in its discretion give on such conditions as it may

determine;

8.6.5 have any claim or right of action against the Lessor for abatement of rental

damages, loss or otherwise by reason of any interruption in the supply of

water, electricity, heating, lift or any other service or amenity to the building;

8.6.6 store or leave or permit the storage of any goods, furniture, cartons, boxes or

equipment on the pavement outside the entrance or in the entrance hall,

passages, lifts or on the landings of the building;

8.6.7 make any alterations, additions or improvements to the interior or exterior of

the leased premises or building, whether structural or otherwise, without the

Lessor's prior written consent;

8.6.8 have any right to an enrichment lien for any such improvements it may make

to the leased premises, whether with or without the Lessor’s written consent;

8.6.9 have any right to bring any claim whatsoever for compensation or any other

cause of action, for any improvements which it may have made to the

premises whether with or without the Lessor’s consent.

8.7 Security of and control of access to the premises shall be the responsibility of the

Lessee.

8.8 The Lessee shall ensure that the Lessee and the Lessee's invitees comply with all rules

laid down from time to time by the Lessor for the use of the communal amenities and

services.

8.9 The Lessee :-

8.9.1 shall be entitled from time to time to erect in the leased premises such

fixtures and fittings as may be required or necessary for the carrying on of

the Lessee's permitted business therein, which shall be in keeping with the

general finish of the building provided that -

8.9.1.1 all such fixtures and fittings erected by the Lessee in the leased

premises shall be removed by the Lessee upon the expiration or

earlier termination of this lease;

8.9.1.2 and any damage caused to the leased premises as a result of

any such removal shall be made good by the Lessee at the

Lessee's expense;

8.9.2 shall not be entitled to withhold or delay payment of any moneys owing by the

Lessee to the Lessor in terms of this lease by reason of the leased premises

or any part thereof being in or falling into a defective condition or a state of

disrepair, or for any other reason whatsoever;

8.9.3 undertakes to make timeous application for any licences and any renewals

thereof necessary for the conduct of its permitted business in the leased

premises and to proceed with any such applications without delay.

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9. LESSOR'S ACCESS

The Lessor shall be entitled:

9.1 at any time during the currency of this agreement, to effect any such repairs, alterations,

improvements or additions to the leased premises, building or property as are required

by any competent authority or which the Lessor may in its discretion decide to carry

out. For any such purpose it shall be entitled to erect scaffolding, hoardings or other

building equipment anywhere in or about of the building as also such devices as may be

required by law or which the Lessor's architect may determine to be reasonably

necessary for the protection of any person against injury arising out of the building

operations. The Lessor or any of its nominees shall further be entitled to such rights of

access to the leased premises as may reasonably be necessary for the aforesaid

purpose. The Lessee shall have no claim against the Lessor for compensation,

damages or otherwise, by reason of any interference with its tenancy or its beneficial

occupation of the leased premises occasioned by any such building works.

Notwithstanding the aforesaid the Lessor undertakes -

9.1.1 not to unnecessarily interfere with the carrying on of the Lessee's business in

the leased premises during the carrying out of such building works, and

9.1.2 to carry out the building works as quickly as possible in the circumstances.

9.2 to inspect the leased premises for any purpose whatsoever at all reasonable times.

9.3 but shall not be obliged at any time to clean the windows of the leased premises whether

from hoists suspended from the outside of the building for the purpose, or otherwise.

9.4 to show the inside of the leased premises to prospective tenants or purchasers of the

leased premises or the property, or prospective purchasers of the share capital of the

Lessor, at all reasonable times.

9.5 to exercise exclusive control and management in respect of the common areas. It is

recorded that the Lessor has made rules and regulations governing the relationship

between tenants of the building in regard to the common areas, of which the Lessee

acknowledges himself to be aware. These rules and regulations govern each class of

tenant on an equal basis. The Lessee undertakes to observe the rules and regulations

and to give due consideration to the use and enjoyment of the building by other tenants,

customers and employees. The Lessor shall have the right to vary or add to the rules

and regulations from time to time.

9.6 to affix and show on the windows of the leased premises or elsewhere thereon "TO LET"

notices during the period of 3 months immediately preceding the expiration of this

agreement and during such period any incoming tenant shall be entitled to exhibit on the

windows or doors of the leased premises any notice that may be required in connection

with any application for any licence to carry on business in the leased premises.

9.7 after giving three months' written notice to the Lessee at any time during the currency of

this agreement to change the name of the building at its sole and absolute discretion and

the Lessee shall have no claim against the Lessor for compensation or otherwise, by

reason of such change of name.

9.8 to locate service mains and other facilities within the leased premises when required in

terms of any by-law or regulation or required in the opinion of the Lessor's architect.

Service mains will be located so as to cause minimum interference with the Lessee and

will be as unobtrusive in appearance, as possible. These facilities include but are not

necessarily limited to drains, water supply sewerage-lines, steam and condensate pipes,

condenser cooling water pipes, electric power circuits, telephone circuits, pump stations,

electric panel boards, sanitary vents and exhaust ducts.

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10. INSURANCE

10.1 The Lessee shall not do or omit to do anything or keep in or on the leased premises

anything or allow anything to be done or kept in or on the leased premises which in terms

of any fire or other insurance policy held from time to time by the Lessor in respect of the

building and/or the leased premises may not be done or kept therein, or which may

render any such policy void or voidable and the Lessee shall comply in all respects with

the terms of any such policy provided that if any premium payable in respect of any such

policy is increased -

10.1.1 by reason of the nature or scope of the business which the Lessee carries on

in the leased premises in terms of this agreement; or

10.1.2 as a result of the Lessee not complying with the aforesaid provisions;

10.1.3 then without prejudice to any other rights which the Lessor may have as a

result thereof, the Lessee shall on demand refund to the Lessor the amount

of that additional premium.

10.2 The Lessor shall take out and keep in force during the agreement a fire insurance policy

in respect of the building, as well as riot cover for glass in respect of the leased

premises.

10.3 The Lessee shall be obliged at its cost to take out and keep in force during this

agreement a public liability insurance policy for such amount as will provide indemnity in

respect of all claims which may foreseeably be made against the Lessor arising out of

the Lessee's business and/or tenancy of the leased premises as well as an insurance

policy for all glass situate in or forming part of the leased premises for whatever

contingency is not covered by the lessor's policy referred to in Clause 10.2.

10.3.1 if any dispute shall arise between the parties in regard to the operation of this

Clause 10, such dispute shall be referred to an insurance expert nominated

by the Lessor who shall determine such dispute as an expert and not as an

arbitrator and whose decision shall be final and binding on the parties.

11. CONTRAVENTION OF LAWS

11.1 The Lessee shall not contravene or permit the contravention of any law, by-law,

ordinances, proclamation or statutory regulation or the conditions of any licence relating

to or affecting the carrying on of any business in the building.

11.2 The Lessee shall not contravene or permit the contravention of any provision contained

in the title deeds relating to the property.

12. SUBLETTING, TRANSFER OF OWNERSHIP AND CESSION

12.1 The Lessee shall not cede or assign or mortgage or pledge any of its rights under this

agreement, nor allow anyone else to occupy the leased premises or any part thereof on

any conditions whatsoever or for any reason whatsoever, without the Lessor's prior

written consent.

12.2 The Lessee shall not be entitled to sublet the whole or any part of the leased premises,

save as follows -

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12.2.1 if the Lessee wishes so to sublet, it shall apply to the Lessor in writing for

consent to such subletting. The Lessee shall give the name of the

subtenant, the guarantor/s, if any, of the sub-tenant's obligations, the

proposed date of commencement (which shall not be earlier than sixty days

from the date on which the Lessor receives the Lessee's application), the

duration of the proposed sublease, the portion of the leased premises which

the Lessee proposes to sublet, the rental which the Lessee proposes to

charge the sub-tenant and all other material terms of the proposed sub-

lease.

12.2.2 the Lessor may, in its sole and absolute discretion:-

12.2.2.1 refuse consent; or

12.2.2.2 consent to the sublease on such conditions as it may determine

in which case the Lessee may on receipt of written notification

from the Lessor so sublet the leased premises or part thereof

subject to such conditions, or

12.2.2.3 in the event of the Lessee applying to sublet the whole of the

leased premises, the Lessor may cancel this agreement and give

the Lessee written notice of its intention to enter into a direct

lease with the proposed subtenant. In such event, on the

commencement date of a new written agreement entered into

between the Lessor and proposed subtenant, this agreement

shall be terminated and be of no further force and effect. This

termination shall, however, in no way detract from the Lessor's

right to recover from the Lessee any amounts which are due by

the Lessee in terms of this agreement.

13. ADVERTISING AND SIGNS

13.1 The Lessee shall not be entitled to affix, paint, erect, install or display any advertising or

other signs (including neon signs) on the windows, doors, exterior or roof of the leased

premises or the building, without the Lessor's prior written consent. When applying for

such consent the Lessee shall submit to the Lessor in duplicate plans drawn to scale of

each sign or advertisement together with all relevant information relating thereto

including inter alia, details of the size and depth of letters to be used, the materials to be

used, and the method of manufacture, illumination and attachment to, or suspension

from, the leased premises or the building. The Lessor shall have the right to refuse such

consent should the Lessor deem in its sole discretion that any aspect of the sign or

advertisement is not in keeping with the Lessor's signage requirements or with the

general signage or aesthetics of the building. In the event of such consent being

granted, then the Lessee -

13.1.1 shall 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. Should the Lessee fail to do so the Lessor

shall be entitled, after giving the Lessee 7 (seven) days written notice, to

attend to the signs in such manner as the Lessor deems necessary and to

recover the costs of so doing from the Lessee on demand.

13.1.2 hereby indemnifies the Lessor against all claims of whatsoever nature made

against the Lessor as a result of the installation, erection or operation of such

signs.

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